‘Dead Man Walking’ nun: My argument with Scalia

Updated 4:29 PM EST, Mon February 22, 2016
FILE- This file photo provided by the Oklahoma Department of Corrections shows death row inmate Richard Glossip. The Oklahoma Court of Criminal Appeals has set execution dates for three death row inmates who had challenged a drug that will be used in their lethal injections. Execution dates of Sept. 16, 2015 for 52-year-old Glossip, Oct. 7, 2015 for 50-year-old Benjamin Robert Cole, and Oct. 28, 2015 for 54-year-old John Marion Grant have been scheduled. (Oklahoma Department of Corrections via AP, File)
PHOTO: Oklahoma Department of Corrections/AP
FILE- This file photo provided by the Oklahoma Department of Corrections shows death row inmate Richard Glossip. The Oklahoma Court of Criminal Appeals has set execution dates for three death row inmates who had challenged a drug that will be used in their lethal injections. Execution dates of Sept. 16, 2015 for 52-year-old Glossip, Oct. 7, 2015 for 50-year-old Benjamin Robert Cole, and Oct. 28, 2015 for 54-year-old John Marion Grant have been scheduled. (Oklahoma Department of Corrections via AP, File)
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Helen Prejean: Antonin Scalia's position on death penalty flouted Catholic teaching and hewed to archaic ideas on mental disability

Editor’s Note: Sister Helen Prejean, a Sister of St. Joseph, ministers to prisoners on death row. She is the author of “Dead Man Walking.” The views expressed are her own.

(CNN) —  

I’m praying for Justice Antonin Scalia, that his passage into eternity was peaceful. I respect his sincerity, even though on the subject of the death penalty, he was my nemesis.

As I was writing “The Death of Innocents,” I happened to run into him in an airport, and I said teasingly that I was “taking him on” in my book. And he, personable as he was, jabbed his finger in the air and said, “And I’ll be right back at ya!”

In “Innocents,” I wrote about two men I believe were innocent: Joseph O’Dell and Dobie Gillis Williams, whose executions Scalia summarily authorized without an apparent qualm, acknowledging that his role on the Supreme Court made him part of the “machinery of death.”

Helen Prejean
PHOTO: William Thomas Cain/Getty Images
Helen Prejean

Scalia’s experience of the “meaning” of capital punishment, as he described it in one of his dissenting opinions, couldn’t have been more different from my own. In the marble confines of the court, he argued interpretation of Constitutional texts, while I, in state killing chambers, accompanied real human beings – six of them – to their deaths, which were a direct result of Scalia’s interpretations.

In grasping the “meaning” of state killings, I had one advantage over Scalia. I was there, close up to the anguish and terror of the condemned and their grieving mothers. Scalia, in the cerebral confines of the Court, never touched a tear-stained cheek, never stood present at the grave as families buried their loved ones killed by the state.

One thing the justice and I did have in common, however, was this: he stumped around the country to persuade citizens of the rightness of his “originalist” approach to the Constitution; I stumped around the country (still do) to persuade citizens to abolish the death penalty, laying out my arguments through stories of personal experience, beliefs of my Catholic faith and logical, fact-infused arguments, including Constitutional analysis.

After all, as citizens, are we not the ultimate proprietors of the Constitution and its meaning for our lives? Are not its protections of life and liberty far too precious to blindly be turned over to legal “experts,” every bit as prone to prejudice and blind spots as the rest of us?

I have profoundly disagreed with Scalia on two fronts: jurisprudence and religious faith.

As for his jurisprudence, I do not think that the only correct way to interpret the Constitution is to interpret its words (text) as, supposedly, our 18th century framers understood them.

Given what we now know about the fluid nature of text and context in linguistics, that’s an impossible task. Even more impossible is to confine ourselves to the practice of punishment as they practiced it, which, to most modern eyes, was harsh in the extreme.

In 1999, I accompanied Dobie Gillis Williams into the killing chamber of Louisiana three times before my native state finally killed him. An African American with a very low IQ, Dobie was sentenced by an all-white jury to die for supposedly killing a white woman.

I say supposedly because even though the appeals courts upheld Dobie’s guilt, I am convinced of his innocence. I tell Dobie’s story in”The Death of Innocents,” taking readers through our broken system of justice that masks truth and gets poor men like Dobie executed.

Three years after Dobie’s death came a Supreme Court decision that, had it come earlier, might well have saved his life, a decision in which Scalia fiercely dissented. In Atkins v Virginia (2002), the court ruled 6-3 that executing people with mental disabilities – that is with an IQ of 70 and below – violates the Eighth Amendment’s ban on “cruel and unusual punishments.”

In his dissent, Scalia used as his moral criterion an 18th century dictionary’s definition of “idiot” as “such a person who cannot account or number twenty pence, nor can tell who was his father or mother, nor how old he is.” According to Scalia’s perception of the Constitution as not living but dead, that archaic definition should have guided the court’s decision and not any modern understanding of diminished mental capacity. Dobie, who had an IQ of 65 but knew exactly who his mama was, would have failed Scalia’s “idiot” test.

My second argument with Scalia was the way he interpreted Catholic teaching about the death penalty. Church opposition to government executions has developed considerably in recent years, which to Scalia was anathema. He interpreted his Catholic faith as he interpreted the Constitution, staking his position in unchangeable tradition, upheld by Saints Augustine in the 5th century and Thomas Aquinas in the 12th.

These stalwart teachers, he maintained – unlike Catholic American bishops so easily swayed by “modern trends,” as he saw it – upheld the righteousness of government-imposed executions as God’s will, justified in the same way as the killing of a rabid dog or the amputation of a gangrenous limb.