James Martin, S.J.August 19, 2009

I wouldn't put it that way, but Alan Dershowitz, the Harvard Law professor, makes an interesting point about the Justice's comments on Monday, and how they square with Catholic teaching and Christian morality.  Here's Dershowitz on The Daily Beast:   

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.


But whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Read the rest here.  More Cafeteria Catholicism?  You have to admit that, no matter what the legal books say, executing innocent people, at the very least, goes against the Gospel. 

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
11 years 6 months ago
It has been mentioned elsewhere, but a distinction has to be made between it being immoral for government to execute the innocent and the locus of the power to stop the execution from happening.  Justice Scalia makes argues that that the federal judiciary may not use habeas corpus to entertain the suggestion of actual innocence and that the Supreme Court's particular use of its own habeas powers in this case is procedurally confused (this point is a bit technical).  Scalia is not suggesting that executing the innocent corresponds with Christian moral theology, he is saying that he lacks the legal authority to prevent it from happening.
11 years 6 months ago
In Scalia's defense, he's always been forthright about the fact that Catholic teaching does not (at least overtly) play a part in his jurisprudence.  I think many conservative Catholics ignore the fact that, for example, he's always said that Roe should be overturned, but only on federalism grounds, and that if the citizens of a state voted to legalize abortion, then, constitutionally, that would be respected.  I don't think he would necessarily be a solid vote for upholding a federal ban on abortion.  On the contrary, he's always said that if he felt a case forced him to compromise his moral beliefs, he would recuse himself.  So I don't think Scalia (not sure about Thomas) should be Exhibit A in conservative cafeteria Catholicism.  If we want a reasoned moral dialogue we should begin by honestly acknowledging the arguments on the other side.  
And I should add that his statement in the dissent about what the Court has not held doesn't mean that's what the Court, or Scalia personally, would hold.
11 years 6 months ago
Josh, you are correct in your assessment of Scalia's views on federalism, which are wrong by the way.  The plain language of the 14th Amendment makes any change in how the begining of life is defined a question for Congress, not the States.  I have not researched this, but I suspect Justice Scalia was or is probably a member of the Federalist Society, and that this affects his judicial view more than his Catholicism.
On the case before him, I suspect he expects prosecutors to do the right thing rather than constitutionalizing what should be prosecutorial common sense.  Sadly, prosecutors would rather have the win than do the right thing, particularly if the convicted is black and the prosecutor is in the South.  Again, under the 14th Amendment, the federal courts have a role in doing justice where such biases, however unstated, are an essential feature of the criminal justice system.
11 years 6 months ago
If a defendant is convicted of a crime and newly discovered evidence proves that the defendant is actually innocent, then that defendant, obviously, did not have a full and fair trial to begin with.
11 years 6 months ago
'that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.'
And live on a fat pension for life... what courage!, what sacrifice.!.. for 'truth' and 'law'...'my country right or wrong' ..But would he prayerfully attend the dead guy's funeral?... nah..
11 years 6 months ago
It seems that the Jesuits at America are not the only people who have problems with catholic teaching in its fulness.It is sad that there is a double standard and especially after such a clear teaching by Pope John Paul on the sanctityof life .The line by Fr Martin "if" on the morality of abortion seems tit for tat.Is it not a case of relativism?I am encouraged that the Jesuits seem to be ever more concerned by cafeteria catholicism ,if this continues they may find themselves on the slippery slope to orthodoxy. George Weigel and Judge Scalia will no doubt toast and say "felix culpa".  
11 years 6 months ago
"If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?"
This line is by Alan Dershowitz, not Fr. Martin.
11 years 6 months ago
Lay off Scalia! He is our strongest Justice in that court that fights for rights we Catholics believe in, I understand his reasons are different, but look at the cases he stood for and tell me they are not Catholic in result (I am not saying all of them but most of them). I am afraid alot of Catholics that attack Scalia don't understand that this person fights for them, but he takes the route that he thinks will win the battle he doesn't fight the enemy head on because he thinks he will lose that way. I have read many Scalia opinions and this guy for the most part fights for what we fight for. 
11 years 6 months ago
I could not help but wonder how Scalia could have penned an opinion LAST WEEK when the Supreme Court is not in session. I have been looking for this decision so far without success in order to read the quote in context since I have no faith in the person making the allegation.
I also find it interesting that he did not link the opinion in his article on the Daily Beast.
I will refrain from commenting until I an read the opinion.
I will say as a lawyer, if there is proof or evidence of innocence that was not presented at time of trial, there are procedural rules to get a new trial. Thus it is not a ''constitutional'' issue, per se. It is a rule of criminal procedure which allows for a new trial or for the judge to make a determination based upon the weight of the evidence.  Now the failure to grant a new trial based upon the evidence could be a constitutional question depending upon what the court rules  at the lower level, but frankly the scenario painted by Dershowitz is so patently absurd as to call into question the reason for his post.
11 years 6 months ago
I have no doubt that Scalia would find it to be immoral to execute an innocent man.  But Scalia has repeated for many years that it is a mistake to view every immoral act as also being unconstitutional.  If the two are interchangeable, then we no longer live in a democracy, but rather in an oligarchy controlled by unelected, life-time appointed judges. 
I also would be willing to bet that his point in this little excerpt is that the proper venue for preventing this immoral act from occurring is not in a court reviewing on constitutional grounds.  Scalia has a lengthy history of challenging the proper scope of the use of judicial review and its gradual displacement of the other two branches of government.  I would guess that he would argue that the proper approach to this problem is to seek relief from the Executive (probably a governor).   That can be followed by a court's vacating of the conviction under normal judicial rules (not on constitutional grounds, but on the authority of statutes passed by the legislature).  This happens all the time.  The public would be up in arms in the scenario of the "murder victim" being seen alive and well, and the public can bring its pressure to bear on the elected branches of government to correct this wrong.  The mistake is in elevating every important problem to a constitutional one, which takes the question out of the sphere of democratic control.   If you really want to do that, pass a constitutional amendment making it clear that the public wants this to happen.  Otherwise, stop passing the buck to the least democratic branch.
11 years 6 months ago
Having located the article discussing the case and the court's decision,  I would defer to Ed Whelan's lucid explanation ( see url address below) to this interesting approach to have a death penalty conviction reviewed. As a defense lawyer, I can very much appreciate the defendant's efforts to have his conviction overturned. At the same time I also understand the associate justice's concern over the use of such a technique and whether it is an appropriate process. While I can support the decision by the court, I cannot support the rabid and gratuitous attack by Alan Dershowitz and his feeble and incorrect insertion of Catholic moral teaching into this procedural legal question. There is no proof of the defendant's innocence. The case is 20 years old. Davis is arguing for another shot to prove his innocence and I would be willing to give him the opportunity. But there is no cause for castigating Scalia because he holds that the previous inquiries were dispositive. It is especially ironic that someone like Dershowitz who supports killing innocent babies in the womb without any due process of law ( trial and appeal) should be so exercised about Scalia's attitude. Perhaps Dershowitz and anyone who countenances such drivel should look in the mirror and ask what he or she has done to save an innocent unborn child from the executioner's knife at the local aboriton mill. 
11 years 6 months ago
This is a publicity stunt by Dershowitz. Surely he knows that Scalia made the very same point in the case of Herrara v. Collins, 506 U.S. 390 (1993) over 15 years ago.
11 years 6 months ago
Fr. Martin,
I am disappointed that you have posted a link to this piece by Prof. Dershowitz.  Should not basic Christian charity cause one to stop and ponder the possible alternative exlanations before highlighting and repeating an accusation that another person is acting immorally, unfaithfully or is out of communion with the Church?  A few moments of serious reflection should have made it clear that Professor Dershowitz's confused and ultimately baseless swipe at Justice Scalia's moral rectitude and fidelity to Church teaching is below the belt, and not worthy of being uncritically amplified in a prominent Catholic journal like America.
As Professor Dershowitz should well know, neither Justice Scalia nor any of his colleagues were placed on the Supreme Court by their fellow citizens to tell us what is or is not moral in any particular case or circumstance.  Rather, their job is to apply the Constitution and laws to the facts in each case.  If Justice Scalia (or Justice Thomas or any other Justice) concludes the Constitution does not bar the execution of an innocent man lawfully convicted and sentenced to death, then it is the Justice's moral duty to say so, even if he believes it would be immoral for the State to actually execute such a person.  It is not the job of Supreme Court justices to twist the meaning of the law, dishonestly, to hold every immoral act unconstitutional.   In short, in the situation posited, Justice Scalia would have no power to stop the execution, except by illegitimately usurping an authority not conferred on him by the law.  To do so would be to usurp the sovereignty and free will of the People and to abuse the power entrusted to the Justices - it would, essentially, make the Justices dictators, even if only benevolent ones.
Surely being a faithful and moral Catholic does not require one to abuse one's position and authority to illegitimately impose his will on his fellow citizens.
11 years 6 months ago
Dershowitz makes one quasi-error in his analysis when he states that Scalia's statement can be interpreted to mean that the Constitution does not prohibit the execution of a man convicted of murder after a constitutionally-flawed trial.  While, technically, this is true, Scalia's statement is, however pathetically and embarassingly so, unassailably correct.  In the current atmosphere of Constitutional jurisprudence, there is nothing unlawful about executing an innocent defendant who has exhausted all of his appellate options without success in the courts.  However unpalatable (and believe me - I find it cosmically unpalatable), our jurisprudence only entitles the innocent to full and fair process - not to a particular result.
11 years 6 months ago
James Martin, S.J., in this article, has written NONSENSE.  If you can't see it, go read the numerous series of posts on this issue at "Bench Memos" on [url=http://www.nationalreview.com]www.nationalreview.com[/url] .

The latest from america

Pope Francis greets the crowd as he arrives to celebrate Mass at Franso Hariri Stadium in Erbil, Iraq, on March 7. (CNS photo/Vatican Media)
Pope Francis concluded his three-day trip to Iraq with a stadium Mass in which he said the country “will always remain with me, in my heart.” America's Vatican correspondent, Gerard O’Connell, reports.
Gerard O’ConnellMarch 07, 2021
On the final day of his historic trip to Iraq, Pope Francis said, “To cleanse our hearts, we need to dirty our hands, to feel accountable and not to simply look on as our brothers and sisters are suffering.”
Pope FrancisMarch 07, 2021
Ayatollah Ali al-Sistani, one of Shiite Islam's most authoritative figures, meets with Pope Francis in Najaf, Iraq, on March 6. (CNS photo/Vatican Media)
On the second day of his trip to Iraq, Pope Francis met with a Shia Muslim leader in Najaf and delivered a message of religious unity in the ancient community of Ur. Vatican correspondent Gerard O’Connell reports.
Gerard O’ConnellMarch 06, 2021
Pope Francis is pictured with religious leaders during an interreligious meeting on the plain of Ur near Nasiriyah, Iraq, March 6, 2021. (CNS photo/Paul Haring)
Pope Francis' prayer at the interreligious meeting at Ur, Iraq on Saturday, March 6.
Pope FrancisMarch 06, 2021