Scalia, Cain, and the Machinery of Death

Supreme Court Justice Antonin Scalia 
In 1992 a man named Leonel Herrera, sentenced to death for killing two policemen, asked for a hearing in the federal courts on the basis of recently revealed evidence which, he claimed, established his innocence. A federal court judge stayed his sentence; a panel of three judges of the U. S. Court of Appeals for the Fifth Circuit lifted the stay. Hours before his execution, Herrera appealed to the United States Supreme Court, which agreed to hear his case. Early in 1993, the court, in a six-three vote, ruled against him, and suggested that Mr. Herrera look for clemency from the governor of Texas. Herrera, who insisted upon his innocence until the last minute (“I am an innocent man, and something very wrong is taking place tonight.”), was executed four months later.

Composed in stolid prose with many citations of precedence, the court’s opinion in Herrera v. Collins was written by then Chief Justice William Rehnquist, but it is Senior Associate Justice Antonin Scalia’s concurring opinion, composed with caustic wit, which has become notorious both among those in favor of and those opposed to capital punishment. Scalia, who describes himself as an “originalist” in his interpretation of constitutional law, wrote, “There is no basis in text, tradition, or even in contemporary practice. . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

Dissenting in Herrera v. Collins, the late Justice Harry Blackmun wrote: “Nothing could be more contrary to contemporary standards of decency or more shocking to the conscience than to execute a person who is actually innocent. . . . We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced, but who, nonetheless, can prove his innocence with newly discovered evidence.”

Joined by Justice Clarence Thomas, Justice Scalia offered mocking advice to the three dissenters (Blackmun, Stevens, and Souter): “If the [constitutional] system that has been in place for two-hundred years (and remains widely approved) ‘shocks’ the dissenters’ consciences .. . perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of ‘conscience-shocking’ as a legal test.”

Those unfamiliar with Justice Scalia and his views, told he is a man capable of humor, may imagine that his own conscience is alive to the danger implicit in the moral disaster he recommends, that he doesn’t really mean to kill a potentially innocent man.

Not at all. He is serious, and his view is not without precedent. James Wilson of Pennsylvania, one of the six original justices of the Supreme Court, declared at our Constitutional Convention in 1787: “Laws may be unjust. . . and yet not be so unconstitutional as to justify the judges in refusing to give them effect.” If Leonel Herrera had in fact been innocent, something we may never know, we must suppose Justice Scalia would see that as injustice under state law but acceptable collateral damage in respect of his interpretation of the intent of the Constitution.

Those unsympathetic to Justice Scalia's view believe that an unjust law is not law but oppression. In trying to save tax money and bring so-called closure to the families of murder victims by proposing to limit death row appeals, in giving no ear to potential post-conviction evidence of innocence—in supporting the death penalty at all—we believe that Justice Scalia has misunderstood the first purpose of our fundamental legal document, which is to protect the people.

There is evidence that animals will hold a grudge. I knew a man who shot a crow for fun and, as an apparent consequence, was harassed by crows for months when he went out of doors. If a crow saw him, it swooped threateningly. We believe certain animals socialize, even consult with one another. Dogs and cats appear to study us, have sympathy for us, feel affection and friendship for each other, and possess the capacity to grieve for the dead, theirs and ours. We have no means of knowing whether this represents a form of cognition like our own or simply conditioning and the instinct to prevail over the dangers of an environment. While they may experience what we interpret as sensations of anger, sympathy, and grief, the likelihood is they have no awareness concerning the sensations, no ability to examine them and decide whether or not to allow such an examination to guide action—to come to believe, say, that they have been wrong in being aggressive towards the crow-killer or virtuous in stopping their harassment, which they eventually did. We believe the dog feels shame at having ruined the carpet, but it is probably fear of punishment we observe: the need to survive takes charge and prevents him doing the same thing again. No self-aware resolve to change his ways, no conscience, as we understand the word, has been involved.

Of the things that put us at the top of the evolutionary ladder, most of us believe that this self-judging, moral hair-splitting, imaginative, empathetic, eternally nagging mystery we identify as conscience is foremost. The Socratic imperative insists that the capacity to examine our thought is the beginning of every individual journey of discovery of what the philosopher calls the supreme good. Without the will to exercise as close an inspection of one’s thought and motives as courage allows and the consequent obligation to come to decisions and act on them for our own and others’ good, we are mere carriers of seed, necessary only as a vegetable is necessary.

"Utopia" by Thomas More
We are at the beginning of a century in which our country’s actions, including our policy regarding the death penalty, are global in their effect. Religious and political zealotry and economic irresponsibility have heated the conflict between the haves and the have-nots to a boiling point. In view of this, we are compelled to remind ourselves that the fatal spilling of blood under any circumstance still demands satisfaction from those in touch with their consciences. “Extreme justice is extreme injury,” wrote Thomas More in 1516 in his Utopia. More, who would become a victim of capital punishment himself, did not mean that we ought not to kill the murderer, only that we ought not to kill the cut-purse, since, the punishments being equal, the act will encourage a thief to play it safe and kill his victim, who is witness against him, the latter crime being a greater wrong than theft. In recognizing lawful death as extreme injury, More tells us that an executed felon has been subjected to an act from which there is no turning back, that we had better know what we are doing both as it concerns the morality of the act, a justice system not being in itself good or moral, and the public safety. Thomas More saw justice as law disciplined by civilization and conscience.

Any organization or individual dispensing justice may entertain mercy. But since we are not perfect, mercy is negotiable, subject to the humor of the one who has power to dispense it. Often politically motivated, generally unavailable to the poor and minorities, otherwise without pattern or order, mercy is not to be trusted. Dictators, divine right kings, and judges may be merciful. Hitler, amused, digestion in order, a promise of sex on hold at his Berchtesgaden retreat (we are told he was a man of charm, attractive to women as well as men), may have been merciful now and then. The governor of Texas was not disposed to mercy in the case of Leonel Herrera in 1993. But where there is no need for mercy, there is no need to be troubled by the haphazard nature of its bestowal. Good law will do what mercy may not.

When she bore him, Eve is reported to have said of her first child, the son she called Cain, “I have gotten a man from the Lord.” In that line spoken by the primal mother lies, I believe, the principal lesson of all the lessons in the nearly 1.5 million words of both biblical Testaments:

Adam and his wife were made by God, Cain by a loving man and woman. Adam is the model for the immaculately conceived teacher Christ, Eve the model for the mourning Mother, and jealous Cain the model for the rest of us, no half-god but, as his mother pointed out, a man as we are men and women—the very first, the proto-human, much more accurately our father than Adam. And Cain was a murderer.

From this foundational, blood-saturated story, we have several lessons, the first being that we are all of us, given our humanity, actual or potential murderers.

Cain by Henri Vidal (1896)
The second lesson is that Cain was cursed for his crime, not punished with death. “My punishment is greater than I can bear,” the first killer cried to God, meaning his own end were to be preferred to God’s curse. But it was not his to choose, and he was sent into Nod to build a city and raise a family, while long-lived Adam and Eve were given Seth, who, with his relatives in Nod, began that process of cause and effect—of history—which is our inheritance.

The third lesson: no man is permitted to punish Cain. If God does not destroy Cain for the crime of murder, no one else may presume to, and if one dares, then vengeance will be visited on him. To prevent his capital execution, Cain was branded, stigmatized, so that we may recognize him and know we are to leave him to God.

This tale—succinct, plain in its meaning—defines the conscience of the race. It stands as the first good law and the first moral commandment, prior to the great one in Exodus 20, overriding and sometimes contradicting the body of laws that have to do with religious and civil affairs in Exodus 21 and the chapters that follow (one of these requires execution for violating the Sabbath.) The hanging judge will choose as he likes among the lessons and laws, but let him re-read chapter four of the Book of Genesis before he begins his advice to his jury in the sentencing phase of a murder trial. That brief tale of the brutal act of the first whole man is the indispensable condition: before everything, we are to know that the killing of others is not permitted.

In writing his concurrence in Herrera v. Collins, one of the documents that will tell the history of our nation, Justice Scalia makes an observation concerning the human conscience which presents us with an opinion based not on law or on anything in our Constitution but on a dogmatic personal belief. It is a piece of propaganda. Given the power of his position, his aggressive judicial personality and its consequent influence, his words are toxic. In the moral sense, Scalia, with the majority of the court in that decision, has offered to help facilitate a criminal act, having made it easier for the death penalty states to kill a human being innocent of the crime of which he has been convicted, so long as he has had more or less competent legal counsel, and his conviction appears to have been correctly proved and sustained on appeal under state and federal laws.

This process of appeal, now impeded by a bramble of recent court rulings restricting habeas corpus, is the protection which requires a hearing in a court of law concerning new or questioned evidence, possible trial errors, and so on, on behalf of prison inmates—formerly our most reliable guard against arbitrary punishment and illegal confinement by the state. Between 1976 and 2010 there have been over three thousand executions in the United States. According to the Death Penalty Information Center, during those same years over one hundred and thirty death row inmates have been acquitted at retrial, had the charges against them dropped, or were pardoned on the basis of new evidence of innocence—this in a system in which appellate courts are by their nature and by tradition opposed to consideration of innocence after conviction. In at least seventeen of these cases, DNA evidence, conclusive when supported by other biological evidence, led to the inmate’s release. If some against whom charges were dropped or who were pardoned, were in fact guilty of the crime of which they were convicted, we may be as certain as law allows that at least seventeen were not.

In a capital case (Skinner v. Switzer), heard by the high court in the fall of 2010, the condemned had sought post-conviction DNA testing of crime-scene evidence, citing the protection of the Fourteenth Amendment to the Constitution, which requires that no state shall deprive any citizen of life, liberty, or property without due process of law. Prosecutors before the Supreme Court called this potentially innocent man’s path through the appeals process in an effort to save his life “playing games with the system.” A New York Times report of October 13, 2010, described the prosecution’s view as presented in its brief to the Court: Mr. Skinner was “dragging out his case and seeking to impose unacceptable burdens on government resources and the victims’ dignity.” In a nice example of the fallacy of begging the question, the prosecution declared that there would be no point in such testing “because ‘no item of evidence exists that would conclusively prove that Skinner did not commit the murder.’”

I have had two friends, one a relative, who told me in letters that they are sorry to have missed the opportunity to take part in combat—to play a role in that drama of courage and comradeship, life and death, which has been known in nearly every generation since the first Stone Age farmers, a crop of yams having failed, went to rob a neighbor which had thought itself lucky until then.

The first of these was, ironically, a teacher in the Quaker school in Philadelphia that my children attended. It was deplorable, no doubt, he said, but he wanted me to know, had to confess that he felt an absence, an emotional gap in his experience of life that put him at the feet of those who had been in battle and learned things he would never know. He looked up to them with awe. In his imagination, they looked down on him, however kindly. If there must be war as part of the human condition, and he seemed to think this was the case, he ought to have participated. That he had not made him feel ashamed, at a loss, unable, if he needed to, to speak out for or against war with authority. Only warriors were allowed to do that.

My reply was a standard pacifist one: you mean to say you’re sorry you missed the chance to kill somebody? To see your friend killed?

The second letter was from my scholar-poet cousin Robert Fagles, who had recently published his translation of The Iliad, soon to be followed by translations of The Odyssey and The Aeneid. In the act of becoming Homer and Virgil he had learned as much as anyone is capable of learning through art about the passion of war. Yet an emptiness remained for him, as it did for the Quaker. I had sent him a copy of an essay of mine, in which I denied the need to be a Jew except among anti-Semites. In reply, he talked about his pride in his Jewish heritage and its culture. Apropos of the Holocaust, he wrote, “How sorry I am—more brave talk—that I never served in WWII, not only because I missed the kiln of battle, which some of my pals have faced, but because I missed the battle of the European theater, which saved us all, and especially us Jews who have survived, in the States and elsewhere, to tell the tale. And I’ve been trying to tell it since, in marginal, minute ways. . . . That’s why I tried to translate the Iliad, I think, or one of the reasons.”

There were years between the two letters, and this time I did not climb onto a high moral horse. How could the man who had turned himself into Homer fail to be Achilles? I now saw that, whatever else I did, I ought anyway to have been able to admire without cant or politics those who had ventured where I wouldn’t, and to have been able to grieve candidly when they were killed before they could so much as find someone to love.

“When the rich go to war, the poor die,” wrote the philosopher Jean Paul Sartre: old and young, indifferent or idealistic, hopeful or hopeless—victims of old men hungry to do good or gain power. It is possible as Cain’s descendants to be responsible for a death, decide the act is wrong before and after the fact, yet continue to support a particular cause or a woman’s right to choose. How can we be both for and against death? Expedience plays cat and mouse with integrity. We ally ourselves with life, are sworn to it, then kill, and our alliance with life still holds firm. There are many ways to be but only one way to believe. The most self-aware know that even if an expedient wrong-doing accords with a legal right, still it is not right. No one needs to tell us that the taking of life is a threat to our moral well-being: we feel that. All that’s required of us is to examine the matter and decide which side we are on, our one way to believe, even when we know we will sometimes be unfaithful to that side, and then declare ourselves, just as we do when we vote, saying we are Democrats or Republicans.

Justice Scalia places himself on the side of death in this seemingly endless quarrel, both publicly as a citizen and, wearing his robes, in those matters that come before the Supreme Court having to do with capital punishment. Naturally, we feel obliged to put a value on the two ways of looking at our duty to society. It is my belief, as it is of others, that the lawful taking of life is as wrong as its unlawful taking.

I was acquainted with a lawyer for the families of certain of the victims of Nazi genocide and for a handful of its survivors, and in the early 1960s I attended with him one of the sessions of the Frankfurt Auschwitz trials. A brute named Boger was in the dock. Boger was one of those in charge of interrogations at the concentration camp. He had invented something called the “Boger swing,” an interrogation technique that involved a mobile rail over which a naked prisoner, man or woman, was bent, chained, and beaten with an iron bar after each question, whether or not an intelligible reply, as opposed to screams, had been elicited; this went on until the prisoner was dead. As we listened to Boger's defense—the usual one: he was acting under orders and under the laws of the land as they then existed—my lawyer acquaintance was explaining to me in a philosophical aside that theft had been Hitler’s only purpose in military conquest, theft both petty and grand, from gold teeth to the wealth of Mother Russia. At base cunning thieves and murderers, Hitler and his followers saw the world and its people as a cash machine. Raubmord. That was how the indictment against Boger ought to have read, the lawyer told me, still angry after twenty years. Murder with intent to rob.

The man’s defense was successful in this case, not as to his guilt or innocence, since there was no doubt about the former, but as to his sentence. The Federal Republic—West Germany— had abolished capital punishment in 1949; West Berlin forbade it in 1951; the German Democratic Republic—East Germany—would do so in 1987. Though it is known that right-wing Christian Democrats and others supported abolition in order to help spare Nazis put on trial by the Allied commanders, the majority of the German people, tired of all the death, was opposed to it in every case, and no doubt this spirit had begun to influence the military courts. Boger spent the rest of his life in prison.

Most of us are liable to fantasies of power, ranging from the righteous tell-off to how we would run the country: fictions triggered by real or imagined slights, by stories of horrors perpetrated against the innocent, ourselves and others. I believe such fantasies emerge at that moment in childhood when we first become aware of injustice. In them we put down a bully, a harsh teacher, a more successful, less worthy rival; we punish a stranger who has injured our pride, later the boss who gave our promotion to someone else. This is a function as common as sexual fantasy, and, like it, it provides a temporary emotional release. Developed in books, movies, and TV by the entertainment industry, melodramas of power and sex offer collective participation and collective release, the nearest most of us get to “closure.”

Wilhelm Boger
We use fantasy in dealing with Wilhelm Boger, now beyond our reach, who performed his duty and received a salary for it. Psychology tells us it’s a good bet the man enjoyed his job, probably sexually, that, like any serial killer, he had found the way to make his forbidden sexual fantasies real. Of course, we want him dead. We gladly do the killing in the theater of the mind; we imagine doing it thoroughly, using Boger’s own machine, and we are, perhaps, ourselves aroused by the imagined act. But there it stops. To think of killing a hated enemy allows us brief pleasure and temporary relief, but we don’t do it, would not have done it to Boger if we’d had the chance.

Dissenting in the high court’s decision in Atkins v. Virginia (2002), in which it is held that the killing of mentally retarded men and women convicted of murder is a violation of the Constitution, Justice Scalia wrote bitterly that the decision “is the pinnacle of our Eighth Amendment death-is-different jurisprudence,” saying that there is no support for this view regarding the mentally retarded either in the text or in the history of the amendment. Further, aside from text and history, claiming to know what his countrymen think concerning the matter, Scalia tells us that “it [the decision] does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate.”

Christopher Simmons
Again, in Roper v. Simmons (2005), Justice Scalia held that it is not cruel and unusual to kill a minor, an individual who was under the age of eighteen when he committed the crime for which he was sent to death row. This view applies to a criminal of seventeen, who kills without pity, and equally to a child of fourteen, if the state’s attorney chooses to try him as an adult, who kills without understanding. The majority of the Supreme Court in this case held that “evolving standards of decency that mark the progress of a maturing society,” as well as the Eighth Amendment, forbid such an act. Scalia, our originalist, dissented: “It [the Court] . . . finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely fifteen years ago now solidly exists... I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five members of this Court and like-minded foreigners.”

The foreigners Justice Scalia refers to, he seems to mean, are those ninety-five nations of the world, including all of the principal industrialized ones, which have abolished capital punishment, as well as the majority of the rest of the world, which either forbids or so strenuously deplores the execution of children that the act has become, de facto, forbidden. Presumably, Justice Scalia believes that the American states which do not allow the death penalty are also “like-minded foreigners.” Twelve of them and the District of Columbia have abolished the penalty, and three more, including New York and New Mexico, have done so effectively. Other states keep the law but do not use it. To be disdainful of those who hold the view that as a nation we are capable of evolution in standards of decency is consistent with Scalia’s notion that “the usefulness of conscience-shocking as a legal test” is to be doubted.

In a speech given at the Woodrow Wilson Center in 2005, long after Justice Harry Blackmun’s retirement from the court and six years after his death, Scalia took Blackmun to task once more for his unambiguous opposition to the death penalty. Blackmun had used as his example in an argument a description of what Scalia declared was “one of the less brutal murders that regularly come before us [the Supreme Court].” Having described that murder, Scalia reports, Blackmun then described the brutality of the killer’s subsequent death by lethal injection. Why, Scalia asked, didn’t Blackmun, “select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. . . . How enviable a quiet death by lethal injection compared with that!”

Justice Scalia’s example of the child’s murder makes us hot with rage and a desire for vengeance. Blackmun’s example of the murder of a man killed quickly and cleanly, as Scalia tells it, “ripped by a bullet suddenly and unexpectedly,” leaves us cooler, not so ready to execute the murderer. In that way, Blackmun has been seen by Scalia to weight his argument unfairly. But what is the truth to be learned from this inquiry into cruelty or lack of it in killing a killer? No one doubts the horror and brutality of the killing Justice Scalia employs as his example, but neither an “enviable, quiet” execution in response to it, nor an unquiet one, is pertinent to the national debate concerning capital punishment and the Eighth and Fourteenth Amendments to the Constitution. The question hasn’t to do with how powerfully we are motivated to take a man’s or woman’s life according to the degree of their cruelty, but whether or not we are being cruel (and unconstitutional) in killing that person in turn, no matter how much and with what fury we may want the murderer to suffer for the suffering and death he has caused.

Justice Scalia should remind himself that death penalties are not warranted and executed in hot blood, and acts of personal vengeance are held to be criminal for good reason. Thanks to the slow-moving, layered appeals process, which Mr. Scalia mistrusts because he feels it is frivolously used, it is possible for death row inmates fortunate enough to have competent counsel or legal-aid volunteers on their side to pursue their search for complete justice. With luck and persistence, these convicted men and women may even keep the state from an act from which there is no turning back, and for which it must answer to our collective conscience.

"As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue [capital punishment] without reference to Christian tradition,” Justice Scalia declared in a speech called God’s Justice and Ours, delivered at a conference sponsored by the Pew Forum on Religion and Public Life (the Internet: Prisonerlife.com, 11/18/2002). In his speech, Scalia suggests that the force behind the contemporary aversion to the death penalty is a confusion between what he calls private morality and morality in government, saying that such an aversion is an “erroneous” response to self-government. To support his argument, Scalia quoted with approval Saint Paul in Romans in the New Testament, in which the saint declares that a government’s moral authority comes from God: ÒIt [government] is the ‘minister of God’ with powers to ‘revenge,’ to ‘execute wrath,’ including even wrath by the sword (which is unmistakably a reference to the death penalty).”

In the same talk, Justice Scalia held that any judge who believes the death penalty to be immoral ought to think of resigning his office rather than ignore constitutional law by “sabotaging” capital punishment cases, since that judge has been sworn to apply the law as written with no brief to substitute for it his own law. Scalia further suggested that such a judge, clearly referring to the late Harry Blackmun, the man who had invoked conscience in his Herrera v. Collins dissent, might want to go beyond resignation and campaign to abolish the death penalty or even, “if that fails, lead a revolution.” Scalia continued in the same humorous vein: “If the death penalty is (in his [the judge’s] view) immoral, then it is (hey, presto!) automatically unconstitutional, and he can continue to sit while nullifying a sanction that has been imposed, with no suggestion of its unconstitutionality, since the beginning of the Republic.”

Aspects of the penalty’s constitutionality in light of the Eighth and Fourteenth Amendments have been challenged in the high court in Furman v. Georgia in 1972; in Gregg v. Georgia in 1976; successfully in Coker v. Georgia in cases of rape without a death in 1977; in Thompson v. Oklahoma in 1988 ; in Atkins v. Virginia in 2002; in Roper v. Simmons in 2005; and in House v. Bell in 2006, in which, modifying in part the threat to innocence in Herrera v. Collins, post-conviction consideration of DNA evidence in a death row case may be allowed at the discretion of the states.

It must be admitted that Justice Scalia’s view of the intent of the Eighth Amendment carries force. Cruel and unusual punishment is forbidden, not cruel or unusual punishment. Supported by a coordinating conjunction, the sense of the prohibition appears to be that the death penalty is acceptable under the amendment since it has been usual in America for two centuries but is unacceptable if accomplished with deliberate cruelty—by dismemberment, say, or crucifixion.

Plato’s Socrates argued that the state was perfectly right in ordering his death, because he had sworn to obey the laws of Athens as a condition of his allegiance to and love for the city-state and had then broken them, an argument Justice Scalia would probably approve. But the evolution of modern thought as it concerns the meaning of democracy, has shown us that those same laws, the breaking of which demanded the life of Socrates, are unjust laws and, given them today, must be struck down or disobeyed. Socrates has been shown to have been logical and obedient when he ought to have been moral and disobedient.

Justice Scalia interprets our Constitution so rigidly that it becomes an artifact rather than the living thing the Bill of Rights and amendments show it to be. It is a result of the best intentions of the founding fathers, not a sort of God—their moral authority deriving from an enlightened social conscience as understood in 1787, from an act of disobedience to unjust law by means of revolution, and from a sense of responsibility to the people. The failure to resolve the question of our black population generally and slavery in particular stands as an accusation against them. But the constitutional amendment consequent to the Civil War, which forbids involuntary servitude, and the amendment extending the franchise to all citizens are further proof of the Constitution’s vitality, its availability to alteration in time of pressing social need and evolving standards of decency, and its potential for humane interpretation within the court.

Justice Harry Blackmun, who served on the Supreme Court from 1970 to 1994, in agreement with his colleagues Thurgood Marshall and William J. Brennan, had no doubt that the legal taking of life is immoral—cruel and unusual in every case—and he looked to the Constitution and the protection of its amendments for a remedy to what he saw as a great injustice. If a remedy was not available there because the Eighth Amendment is open to interpretation, the penalty did not become (hey, presto!) moral. Blackmun knew that another way must be found, if not outside the court in the Congress or in the legislatures of our death penalty states, then within it, just as the moral way was discovered in Brown v. Board ofEducation of Topeka in 1954, which found legalized segregation in the United States to be unconstitutional.

The revolution of which Justice Scalia speaks when he suggests that a judge concerned with morality ought to resign and lead one, as he shows he is aware, is no isolated phenomenon. It is the consequence of the ongoing conflict between those with power and those liable to be abused by power—a condition in which governmental authority is continually checked and shaped by private morality. Violent or peaceful, the process maintains humanity and those who govern it in relative balance. The morality sustaining our purpose during our own revolution against plainly perceived oppression and abuse of power went on to permeate all of the branches of the new nation’s government, our judiciary first and foremost.

Almost 35 years ago I began to gather material in order to write a book about death row in America. As I would say in its preface when it was published, my object in doing so was to use the writer’s art to show the reality of the condemned and the reality of the state’s intention, which was to kill a particular man of flesh and blood, just as the convicted felon had himself killed a real human being, not a statistic.

After a four year moratorium, during which our death penalty states were required by the Supreme Court, in the ruling already alluded to entitled Furman v. Georgia, to resolve the inconsistencies in their application of the death penalty, the 1976 ruling Gregg v. Georgia affirmed the court’s acceptance of the penalty in Georgia, Florida, and Texas. Those states had promptly legislated standards that were held by the court satisfactorily to eliminate capriciousness and arbitrariness in death cases by the introduction of the two-part jury trial: to find first as to a defendant’s guilt or innocence, then, in a separate decision, as to penalty, if the verdict were guilty. The judge was also to require of his or her jury an unbiased hearing of mitigating and aggravating circumstances in each case.

The man named in the Supreme Court ruling, Troy Gregg, became the principal figure in the book I called Waiting For It. But before choosing Troy, I had interviewed, among others, a man named Robert Sullivan who was on death row in Starke, Florida, waiting to be executed for the crime of which he had been convicted. Troy did not deny killing his victims but said and continued to say that he had done so in self-defense, so that he felt free to talk about his life, the deaths he had caused, his trial, and his life on death row. Bob, who also maintained that he had been wrongfully convicted, was forbidden by his lawyer to discuss the circumstances of the crime, an absence at its center that would make the book I meant to write pointless, if he were to be its protagonist. But in those several interviews we became, if not friends, at least known to each other. With death waiting, we had to make the most of our talks.

After thirteen years on death row, notwithstanding his own efforts, those of a well-organized defense fund, competent lawyers, and an eleventh hour appeal from the Vatican, Bob was executed in the death chamber at Starke on November 30, 1983. He was the ninth to be put to death in the United States under the new law, the second in Florida.

In his fight to survive, Sullivan had become a knowledgeable jail-house lawyer and a persuasive opponent of capital punishment, for the obvious reason that he wanted to save his life, but also for the unselfish one of wanting to save others who had been condemned.

He was a hugely overweight man, the sugar- and carbohydrate-heavy prison food being, as he said, a consolation for what he felt was his unjust sentence of death. If our interview took place during the prison lunch hour, both Bob’s lunch and mine were brought to us by one of the guards. They liked him, were proud of his appetite, and gave him double portions of everything, two meals, in fact: chicken and veal, bread and plenty of butter, potatoes, two Cokes, two pieces of cake. As he ate, he talked about the law and the death penalty, prison life, even sex on death row, but never his own case. He reminded me of an overweight, cornered, odd-boy-out I knew in sixth grade when I was twelve. This boy had a seizure, finally, in our auditorium, was taken home, and never reappeared at school. In my imagination, Bob was that boy grown up, turned killer. The same odor of ultimate, unappealable exile from humanity hung on Sullivan as it had on the exiled boy. This, as much as the danger he was in, was what distilled our relationship and made me feel I knew Bob better than our short acquaintance would have allowed under other circumstances.

It is hard to believe, after the thousands of such executions that have taken place since, that Bob’s death—like Gary Gilmore’s, who was the first to be killed under the new rules—was banner headline news. When a man or woman is executed under the laws of one of the principal capital punishment states today (Texas, Virginia, Oklahoma, Florida, Missouri), its report is relegated to an inside page, if it is referred to at all, unless the victim is known to the public or a new method of execution has been devised. Bob’s photo, a description of the way he conducted himself in his last days and hours, his terror (he wept), and his bravery in managing to deliver a speech as the metal cap was fitted to his shaved head, in which he urged death row prisoners everywhere, the guilty and the innocent, not to despair, the passing minutes of the execution itself—all of it was recorded on the front pages of the nation’s newspapers.

The man Bob killed or helped to kill was named Donald Schmidt. A family man, Schmidt was the assistant manager of a Howard Johnson restaurant in Homestead, Florida, where Sullivan also worked and with whom Bob continually quarreled. On the night of the murder, Sullivan and another man named Reid McLaughin, described as Bob’s boyfriend, abducted Schmidt after the restaurant closed, taped his wrists, drove with him to a swamp not far from the restaurant, and shot him twice with a double-barreled 12-gauge shotgun. Arrested several days later, Bob confessed to the crime. Schmidt’s watch, credit cards, tape, a shotgun, and a handgun were found in his car. He implicated McLaughlin, who confessed to his role, but entered into a plea bargain, and gave evidence against Bob, saying Sullivan had done the actual killing.

Educated (he had been to college, though he had not graduated), with a record of criminal acts but no prior history of violence, Bob recanted his confession in court, claiming that Reid McLaughlin was the killer. He was sentenced to death. McLaughlin went to prison and was released on parole seven years later.

I have been asked why I choose to write about killers, not their victims, as if I were deliberately withholding sympathy from the latter. The question, I think, ought not to concern degrees of sympathy (a member of my own family was murdered some years ago) but whether or not we have the right to kill at all in any circumstance—stupidly and barbarously in hot blood, as Sullivan and McLaughlin did in Homestead, or scientifically in cold blood, as the state did when it killed Bob in Starke.

On the day before his execution in the state’s electric chair (the prison’s jocular ombudsman, showing it to me, said he wasn’t sure it would be big enough), I sent Bob a telegram, as if he were an actor on opening night: "I'm thinking of you."

It was not by chance, Justice Scalia declared in that speech given before the Pew Forum on Religion and Public Life, that the view of the death penalty as immoral developed in Europe: “Indeed, it seems to me that the more Christian a country is the less likely it is to regard the death penalty as immoral.” Abolition, he said, was strongest in “post-Christian Europe” and had least support "in the church-going United States. I attribute that to the fact that, for the believing Christian, death is no big deal.” To support this notion Scalia quotes not the Thomas More referred to earlier, but the playwright Robert Bolt’s Thomas More in the play A Man For All Seasons. When the executioner hesitates, his ax about to fall, the lawyer declares serenely, “‘Friend, be not afraid of your office. You send me to God.’”

This is neither a church-going country nor a Christian one. A great number of people in the United States go to a place of worship on a designated day. Statistics show that a slightly greater number does not. The freedom to do so or not to do so is protected by the same Constitution and Bill of Rights that protects us from cruel and unusual punishment. Ours is a religion-neutral country ruled by law, whether or not the men and women who govern are devout. “In God we Trust” has been engraved on our coins and written on our paper money, Justice Scalia pointed out in his talk, to show that “we are a religious people whose institutions presuppose a Supreme Being.”

Individuals may presuppose such a Being. Our government, in its role as an instrument of a democratic society, does not, even when it acknowledges God in a motto or in an oath taken when a citizen assuming state or federal office swears or affirms his responsibility to the law and the truth and places a hand on a Bible as he or she does so. Justice Scalia, the individual citizen, trusts in God and in Saint Paul to persuade himself and persuade us that government takes its authority from God “with powers to ‘revenge,’ and to ‘execute wrath,’” and so offers what we suppose he feels is an ultimate justification for the use of capital punishment. Those of us who disagree with Scalia’s view must look to the primal lesson of Cain, seeing it as mystical revelation or as a secular guide to the conscience, and work to legislate its wisdom into law.

Others, supported by what they believe is a divine authority that requires blood-justice, will no doubt continue their work on the side of capital punishment.

Justice Scalia, a Roman Catholic, does not accept the Church’s new teaching that capital punishment employed as an instrument of vengeance is immoral. Having already declared before the Pew Forum his agreement with Saint Paul that vengeance under lawful government authority is moral, the justice then separated himself from the Church’s idea of the death penalty as public protection, which the Vatican allows only because, Scalia said, it knows that it is no longer necessary in practice. He agreed, however, that capital execution ought not to be employed except in cases of “absolute necessity, when it would not be possible otherwise to defend society.”

Justice Scalia must know, as the Catholic Church does, that a sentence of life in prison without parole reliably defends society and also assures society that those who have been wrongly convicted of murder won’t be executed. In the case of a crime held to be particularly heinous, a self-righteous prison thug may perform his own execution. But as to morality in that case, there is little to choose between thug and state, except that the latter has issued itself a license to do what the former does “honestly,” in outrage. Studies by criminologists have taught us for generations that death-for-death justice, far from deterring capital crime, encourages it, its example a further stimulus to the convict-executioner, the street sociopath, and the terrorist for whom life is officially of little account.

It was plain to the founding fathers, whom we use almost as often as the Scriptures to justify our views, that separation of government and religion—that “wall of separation” of which Thomas Jefferson wrote—is essential to the working of justice, as justice must be separated from law-making. Defendants are without protection in a court liable to manipulation by institutions of religious or political faith. There is therefore real danger in the influence of a Supreme Court justice who is unable to recognize the moral necessity of “death-is-different jurisprudence,” who is impatient with what he sees as the frivolity of our appeals procedure, and who, faced with a death penalty question, says in public that for the believing Christian—and Mr. Scalia declares himself to be that—death is no big deal.

Contemporary European nations have freed themselves from the political influence of institutional faith, though a few retain a nominal state religion. All of these European nations and most, if not all, of the other civilized countries of the world have abolished capital punishment. They have done so out of an evolved sense of decency and humanity, out of a horror of needless killing, and out of an educated awareness that the penalty is of no social utility, inflicted as it nearly always is on the poor and uneducated, on blacks and other racial minorities, and on the mentally unfit.

A great deal of the moral decency found in the West comes from allowing the ethics of Judeo-Christianity to move us in their “originalist” sense as set forth, for example, in the sermon preached by Christ after choosing his disciples. Such decency also derives from the compassion which is at the base of all religions and social movements that aim to free people from suffering. Terrorism has come to our doorstep, and Americans have begun to look for ways to assure their safety. As a result, there is increasing public approval both of capital punishment and incarceration without access to constitutional guarantees of protection. But it remains the view of those who appear to be in the minority that when a death requires another death or when punishment or confinement is administered in spite of law, we have chaos, not safety.

Harry Blackmun spent twenty-four years as an associate justice of the United States Supreme Court. A Republican and lifelong conservative, he dissented in the decision that halted capital punishment in the United States and later voted to reinstate the death penalty in Gregg v. Georgia. Though he was the chief architect of Roe v. Wade, which guarantees a woman’s right to abortion in the first trimester of pregnancy and which Justice Scalia repeatedly begs the court to strike down, Blackmun still believed, with Scalia, that strict interpretation of constitutional law ought to trump personal convictions. But then, nearing retirement, the justice made a judicial about-face and found something different to say in regard to the question of capital punishment. Dissenting from the court’s refusal to hear a death case, Blackmun declared that the penalty was always and in all circumstances unconstitutional; thereafter he issued his dissent or concurrence in every case that came before the justices in which a petitioner’s life was at stake, voting always on the side of life. In Herrera v. Collins Blackmun had called the court’s refusal to allow judicial consideration of newly discovered evidence of innocence brought forward after conviction an act “perilously close to simple murder.” And in words reminiscent of those of Chief Joseph of the Nez Perce nation, he said, ". . . from this day forward, I no longer shall tinker with the machinery of death.”

Most soldiers live with the horror of the things they saw and were required to do in battle. Most carry a burden of guilt for the act of killing. Where active resistance is unavoidable, as in the defense of one’s child, oneself, one’s neighbor, or from time to time one’s country under attack or occupation, still we know, or are given the capacity to know, that a wrong has been done if blood is spilled. A church, the military, a legislature cannot carry responsibility for that act. When the death penalty is implemented under laws made by legislators whom we have elected to speak for us, conscience requires that we hold ourselves personally accountable. If communality dilutes guilt, it does not get rid of it.

We wish Justice Scalia could be persuaded, if only temporarily, to jump out of his religious skin and execute his wrath in fantasies, rather than continue to lead the way in Supreme Court rulings that encourage the killing of actual human beings. The standards of decency of the Roman Catholic Church have evolved dynamically since the terrible days of the Crusades, the accusation against the Jews, forced conversions, and the burning alive of heretics and apostates—all because the Church has from time to time re-examined its thinking and allowed fresh thought gradually to alter former views, time-honored or not.


Sculptor and writer Christopher Kit Davis is the author of eleven novels, numerous articles and short stories. He has taught creative writing at the University of Pennsylvania; at Bowling Green State University in Ohio; at Drexel University in Philadelphia; at Indiana University of Pennsylvania; at Franklin & Marshall College in Pennsylvania; at Rider College in New Jersey; and is Senior Lecturer in the Arts emeritus from Bryn Mawr College. Since the publication of his novel, "A Peep Into the 20th Century," Davis has been an activist in the cause of the abolition of capital punishment in the United States.  More information: wordsandstone.com


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