Distinguished religious and secular experts discussed the death penalty Friday at "A Call for Reckoning," a conference sponsored by the Pew Forum on Religion and Public Life that took place at the Divinity School. Among the panelists were Cardinal Avery Dulles; Antonin Scalia of the U.S. Supreme Court; Paul Simon, former U.S. Senator from Illinois; and Frank Keating, governor of Oklahoma.
The conference, which was attended by over four hundred people, featured representatives speaking from several major faiths, including Judaism, Islam, and different branches of Christianity. It also had secular panelists from the judiciary and legislative branches of the federal government, as well as one state executive. Heavy attendance forced the organizers to create overflow room in Bond Chapel and Swift Hall.
The morning panel, "Faith, Traditions, and the Death Penalty," featured several religious speakers: Cardinal Dulles represented the Roman Catholic Church; David Novak of the University of Toronto, Judaism; Khaled Abou El Fadl of the UCLA School of Law, Islam; and Gilbert Meilaender of Valparaiso University, Protestantism.
El Fadl spoke to the panel by telephone due to security concerns surrounding his recent high-profile stands on major current issues, according to Jean Bethke Elshtain, a professor in the Divinity School, the department of political science and the Committee for International Relations, as well as co-chair of the Pew Forum.
Forty-minute question-and-answer sessions were conducted by Elshtain and her co-chair, columnist E.J. Dionne of The Washington Post, at the end of each of the morning panels. Elshtain officiated for the first two, and Dionne moderated the final session.
Keating, a Republican, spoke during the lunch hour, after the conclusion of the morning panel. The conference continued with the first afternoon panel, "Religion, Justice, and the Death Penalty." The speakers included J. Budziszewski of the University of Texas at Austin, Victor Anderson of Vanderbilt University, and Richard Garnett of the University of Notre Dame Law School.
The second afternoon panel, called "Faith, Politics, and the Death Penalty," drew its panelists from the federal government. The first speaker of the panel was Antonin Scalia, associate justice of the Supreme Court, who spoke on the morality of judicial participation in the death penalty.
"What I have to say today has nothing to do with how I vote on decisions," Scalia said as he began his speech. Scalia was a professor at the Law School from 1977 until he was appointed judge of the U.S. Court of Appeals for the D.C. Circuit in 1982. He was nominated by Ronald Reagan to the Supreme Court, and took his seat in 1986.
Scalia began his speech by criticizing current notions of the function of the U.S. Constitution. "The philosophy of the 'living Constitution' is a fallacy," Scalia said. "This implies that the Constitution changes with time. In fact, the Constitution is enduring not living. It does not mean what current society thinks, but rather what it did at the time of its adoption."
Scalia explained that judges are only able to interpret legislation, not to create it. "Congress and the fifty state legislatures can restrict and abolish the death penalty," Scalia said. "A judge bears no moral guilt for laws that society has not enacted. I am part of the 'machinery of death,' but in my view a judge who views the death penalty as immoral should resign."
Scalia also outlined a justification for the death penalty. "The death penalty is moral, since the government derives moral authority from God, and [the government] even has the power of wrath, according to Saint Paul."
There was a brief interruption in the middle of Scalia's speech when Dulles was escorted out of the room due to a health-related problem. Scalia paused, but only those attendees in the lecture hall could see the Cardinal being taken of the room. The conference organizers later said that Dulles was fine.
Simon, a Democrat, followed Scalia. Simon spoke on "personal commitments and public responsibilities" with regard to the death penalty. Simon believes that the Constitution changes with time, and his speech offered opposition to Scalia's.
At the beginning of his speech, Simon also invoked the Bible. "St. Paul was quoted in defense of slavery, but we have come to appreciate that slavery is a moral issue," he said.
After citing moral contradictions in the Bible, Simon discussed evidence of moral change in rulings by the Supreme Court. "In Plessy v. Ferguson, the Supreme Court established a 'separate but equal' doctrine that didn't violate the Constitution, but we came to realize that equal protection meant no discrimination," Simon said. "The basic question of the death penalty then is not 'Is it moral?' but rather 'Is it wise?'"
Simon was very careful to make a specific distinction about the death penalty. "The death penalty costs more, but economics shouldn't dictate whether or not we use it," Simon said. "The death penalty costs the State of Illinois eight million dollars more than to put that person in prison for life. Cost also desensitizes us [the death penalty] makes use of violence as an instrument for society."
Simon also commented that the death penalty is not evenly administered, despite the charge that the death penalty is only administered to certain groups. "Who gets capital punishment?" Simon said. "With only rare exceptions, it is the poor. If you have enough money, you will not receive the death penalty. McVeigh is the exception, a rarity."
Throughout his speech Simon sought to dispel what he considers myths about the death penalty and to illuminate the actual facts and statistics of the death penalty as it is currently carried out in the United States.
"Capital punishment is also discriminatory, as minorities get the death penalty more quickly," Simon said. "Is the death penalty a deterrent?" Simon said that out of the twelve states that do not have the death penalty, ten have murder rates below the national average. Of the twenty-seven states with the highest murder rates, twenty-five have the death penalty.
"Deterrence is simply not a factor," he said. "There is an important lesson we need to learn: that violence only breeds violence I think the evidence is overwhelming that it is not wise to have the death penalty."
Earlier in the conference, Keating argued in favor of the death penalty. Governor of Oklahoma during the Oklahoma City bombings, he had worked for the FBI and in Oklahoma state government prior to his election, Keating offered a law enforcement-based viewpoint on the death penalty during his lunchtime talk. "Our problem is that we treat life cheaply," Keating said. "There have been 800,000 homicides in the United States since 1977, and of that we have executed six hundred and twenty nine people, which works out to one-twelfth of one percent of [murderers] executed. In other words, very few people are executed."
In contrast to some of the other conference speakers, Keating suggested that sentiment and the death penalty are inseparable. "With the death penalty, we have to get into emotions. People do horrible things to others," Keating said. "With death penalty cases, we must be sure that we have the right person, and that person must have first-rate defense, but in the end the law should be carried out. No governor wants to execute the innocent, because then the guilty person is still walking the streets."
Keating then specified why he could not support life imprisonment as an option for murderers. "If a murderer could be permanently segregated from the public forever, I would support it, but it does not seem to be possible now or ever," Keating said. "In death penalty cases, I prefer to err on the side of public safety. Timothy McVeigh has been deterred."
The case of Timothy McVeigh figured heavily into the presentation of the last conference panelist, Beth Wilkinson, who served as the chief federal prosecutor at the Oklahoma City bombing trials. Wilkinson came to speak about the moral struggles that she experienced as a federal prosecutor in the McVeigh case. "I am a struggling supporter of the death penalty," Wilkinson said. "I have grappled with Senator Simon's question about the wisdom of the death penalty."
Wilkinson elaborated further on the cause of moral dilemma with capital punishment. "I have tried to reconcile the death penalty with the notion of a fair trial, and I have struggled with these issues, especially when I was writing my closing statement," Wilkinson said. "I was part of the machinery of death, and I was to give an argument on behalf of the government to the jury that the death penalty was appropriate."
Wilkinson made a philosophical distinction between certain death penalty cases. "There is no doubt in my mind that McVeigh and Nichols received a fair trial, and if you want a religious and moral debate about the death penalty, start with the McVeigh case," Wilkinson said. "Of course it is easy to be opposed [to the death penalty] when innocents are on trial, but you must examine it in the context of the McVeigh case is it right, is it just when the trial has been fair, and the defendant has received a first-class defense and is still found guilty?"
Wilkinson feels no regret about her participation in the McVeigh trial. "I continue to struggle with the death penalty as I try to balance viewpoints," Wilkinson said. "Viewpoints are the products of religion, personal genetics, and life experiences."