By Michelle Martin
Staff writer

Pope John Paul II’s teaching that the death penalty should be imposed rarely, if ever, represents “a continuity with tradition rather than a reversal,” Cardinal Avery Dulles said at a Jan. 25 conference on capital punishment.

“The classical position has been modified, not reversed,” said the Jesuit theologian in his remarks leading off “A Call for Reckoning: Religion and the Death Penalty,” organized by the Pew Forum on Religion and Public Life at the University of Chicago Divinity School. “It has been a legitimate development of doctrine. Self-defense of society continues to justify the death penalty.”

Defending society includes preserving moral order, not just physical safety, Dulles said.

“One could conceive of a situation where if justice were not done by executing an offender it would throw society into moral confusion,” he said. “I don’t know whether that requires any more than that it remain on the books, symbolically, that it be there for society to have recourse to.”

Evangelium Vitae, John Paul II’s 1995 encyclical on the “Gospel of Life,” and the most recent edition of the Catechism of the Catholic Church, say that given the improvements in the organization of modern penal systems, situations calling for the death penalty are “very rare, if not non-existent. Those statements are based on a number of factors that don’t affect the basic legitimacy of state-sponsored executions assumed in Paul’s Letter to the Romans or throughout the Old Testament, Cardinal Dulles said.

Such legitimacy was assumed throughout the Western world until the middle of the 20th century, when the gross abuse of capital punishment by the Nazis and by the Stalinist Soviet Union—regimes with which John Paul II had personal experience—demonstrated how horribly it could be misused, Cardinal Dulles said.

Since then, opponents have used arguments about the inequitable use of capital punishment against minorities and poor people, the lack of adequate legal defense for poor people, the possibility of a miscarriage of justice, the impossibility of assessing the true culpability of a criminal and the tendency of executions to “feed an unhealthy appetite for revenge” and cheapen human life.

“I think the pope and the bishops feel we should go to the extreme of respecting human life, even guilty human life,” he said. Thus, even though the death penalty continues to serve the valid purposes of punishment, using it rarely is “a merely prudential application of the classical doctrine to current circumstances.”

Cardinal Dulles’s argument was echoed by scholars from the Protestant, Jewish and Muslim traditions, who all said that any move away from supporting the death penalty represents a refinement, rather than a repudiation, of their earlier teaching.

Supreme Court Justice Antonin Scalia, part of a panel of government officials who spoke at the end of the conference, disagreed with the idea that the death penalty should be imposed less often. Scalia spoke with the caveat that his personal and religious views do not affect his job on the court, which he believes is to apply the Constitution as written more than 200 years ago—at a time when capital punishment was a given.

“This doctrine is not one the Christian church has consistently maintained,” Scalia said, noting that Thomas More, the patron saint of lawyers and politicians, was considered to have imposed the death penalty too quickly, even by 16th century standards.

The pope’s teaching on capital punishment in Evangelium Vitae did not come ex cathedra, Scalia said, so as a Catholic, he is not obligated to believe it, only to give it serious consideration.

“I have given it careful and thoughtful consideration and rejected it,” Scalia said. “I do not find the death penalty immoral. I am happy to reach that conclusion, because I like my job, and I would rather not resign.”

Oklahoma Gov. Frank Keating, also a Catholic, agreed that the death penalty as used in the United States is not immoral. What’s more, he said, given the ratio of executions to murders in the United States is less than half of one percent, this country meets the pope’s standard for the death penalty to be “extremely rare.”

Keating, a former FBI agent and federal prosecutor, said he knew of no cases where an innocent person had been executed. To try to avoid that, he said, Oklahoma now does DNA testing in all capital cases where DNA evidence is available.

In Illinois, 12 people have been executed since the death penalty was reinstated in 1977 and 13 Death Row prisoners have been cleared and released. If he had been confronted with such evidence of problems in death penalty cases, Keating said, he would have done what Gov. George Ryan did: call a moratorium and try to get to the bottom of it.

In support of the death penalty, Keating raised the example of Roger Dale Stafford, the first man executed in Oklahoma after Keating took office. Stafford killed a family of three, including an 8-year-old boy, during a highway robbery and then killed five teenagers during a restaurant robbery. Timothy McVeigh, the Oklahoma City bomber, killed 168 people, 19 of them children. For them, what other penalty would be just, Keating asked.

“I don’t lose any sleep at night,” he said.

Former Illinois Senator Paul Simon, co-chair of Ryan’s committee investigating the death penalty, argued that human fallibility should make all Americans lose sleep over over capital punishment.

“The basic question is not is it moral or unconstitutional,” Simon said. “The basic question is, is it wise?”

Cases like that of McVeigh, a white man for whom an excellent defense was provided and whose guilt cannot be doubted, are so rare that they can’t be used for an example, Simon said.

Beth Wilkinson, the lead prosecutor in the McVeigh case, argued that, on the contrary, McVeigh is the example to use when discussing the legitimacy of the death penalty because in his case, the system worked and there were no extraneous issues.

Wilkinson described herself as a “struggling supporter” of capital punishment because of her Methodist upbringing and questions about the fairness of the death penalty’s application. After prosecuting McVeigh, Wilkinson worked on the Constitution Project’s committee that recommended capital punishment reforms.

Wilkinson said she didn’t know how she would feel arguing for McVeigh’s death, but when the time came, she had no hesitation.

“I looked him in the eye, and I told the jury to call him a coward and that he deserved to die,” Wilkinson said.