Monday, March 07, 2016

The Death Penalty: John Paul II, Scalia and Mimi Silbert

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John Paul II - Evangelium Vitae #53 - #57.

From man in regard to his fellow man I will demand an accounting for human life" (Gen 9:5): human life is sacred and inviolable  

53. "Human life is sacred because from its beginning it involves ?the creative action of God', and it remains forever in a special relationship with the Creator, who is its sole end. God alone is the Lord of life from its beginning until its end: no one can, in any circumstance, claim for himself the right to destroy directly an innocent human being".41 With these words the Instruction Donum Vitae sets forth the central content of God's revelation on the sacredness and inviolability of human life.

Sacred Scripture in fact presents the precept "You shall not kill" as a divine commandment (Ex 20:13; Dt 5:17). As I have already emphasized, this commandment is found in the Deca- logue, at the heart of the Covenant which the Lord makes with his chosen people; but it was already contained in the original covenant between God and humanity after the purifying punishment of the Flood, caused by the spread of sin and violence (cf. Gen 9:5-6).
God proclaims that he is absolute Lord of the life of man, who is formed in his image and likeness (cf. Gen 1:26-28). Human life is thus given a sacred and inviolable character, which reflects the inviolability of the Creator himself. Precisely for this reason God will severely judge every violation of the commandment "You shall not kill", the commandment which is at the basis of all life together in society. He is the "goel", the defender of the innocent (cf. Gen 4:9-15; Is 41:14; Jer 50:34; Ps 19:14). God thus shows that he does not delight in the death of the living (cf. Wis 1:13). Only Satan can delight therein: for through his envy death entered the world (cf. Wis 2:24). He who is "a murderer from the beginning", is also "a liar and the father of lies" (Jn 8:44). By deceiving man he leads him to projects of sin and death, making them appear as goals and fruits of life. 

54. As explicitly formulated, the precept "You shall not kill" is strongly negative: it indicates the extreme limit which can never be exceeded. Implicitly, however, it encourages a positive attitude of absolute respect for life; it leads to the promotion of life and to progress along the way of a love which gives, receives and serves. The people of the Covenant, although slowly and with some contradictions, progressively matured in this way of thinking, and thus prepared for the great proclamation of Jesus that the commandment to love one's neighbour is like the commandment to love God; "on these two commandments depend all the law and the prophets" (cf. Mt 22:36-40). Saint Paul emphasizes that "the commandment ... you shall not kill ... and any other commandment, are summed up in this phrase: ?You shall love your neighbour as yourself' " (Rom 13:9; cf. Gal 5:14). Taken up and brought to fulfilment in the New Law, the commandment "You shall not kill" stands as an indispensable condition for being able "to enter life" (cf. Mt 19:16-19). In this same perspective, the words of the Apostle John have a categorical ring: "Anyone who hates his brother is a murderer, and you know that no murderer has eternal life abiding in him" (1 Jn 3:15).

From the beginning, the living Tradition of the Church-as shown by the Didache, the most ancient non-biblical Christian writing-categorically repeated the commandment "You shall not kill": "There are two ways, a way of life and a way of death; there is a great difference between them... In accordance with the precept of the teaching: you shall not kill ... you shall not put a child to death by abortion nor kill it once it is born ... The way of death is this: ... they show no compassion for the poor, they do not suffer with the suffering, they do not acknowledge their Creator, they kill their children and by abortion cause God's creatures to perish; they drive away the needy, oppress the suffering, they are advocates of the rich and unjust judges of the poor; they are filled with every sin. May you be able to stay ever apart, o children, from all these sins!". 42

As time passed, the Church's Tradition has always consistently taught the absolute and unchanging value of the commandment "You shall not kill". It is a known fact that in the first centuries, murder was put among the three most serious sins-along with apostasy and adultery-and required a particularly heavy and lengthy public penance before the repentant murderer could be granted forgiveness and readmission to the ecclesial community. 
55. This should not cause surprise: to kill a human being, in whom the image of God is present, is a particularly serious sin. Only God is the master of life! Yet from the beginning, faced with the many and often tragic cases which occur in the life of individuals and society, Christian reflection has sought a fuller and deeper understanding of what God's commandment prohibits and prescribes. 43 There are in fact situations in which values proposed by God's Law seem to involve a genuine paradox. This happens for example in the case of legitimate defence, in which the right to protect one's own life and the duty not to harm someone else's life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbour, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: 

"You shall love your neighbour as yourself " (Mk 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self. This can only be done in virtue of a heroic love which deepens and transfigures the love of self into a radical self-offering, according to the spirit of the Gospel Beatitudes (cf. Mt 5:38-40). The sublime example of this self-offering is the Lord Jesus himself.

Moreover, "legitimate defence can be not only a right but a grave duty for someone responsible for another's life, the common good of the family or of the State".44 Unfortunately it happens that the need to render the aggressor incapable of causing harm sometimes involves taking his life. In this case, the fatal outcome is attributable to the aggressor whose action brought it about, even though he may not be morally responsible because of a lack of the use of reason. 45 

56. This is the context in which to place the problem of the death penalty. On this matter there is a growing tendency, both in the Church and in civil society, to demand that it be applied in a very limited way or even that it be abolished completely. The problem must be viewed in the context of a system of penal justice ever more in line with human dignity and thus, in the end, with God's plan for man and society. The primary purpose of the punishment which society inflicts is "to redress the disorder caused by the offence".46 Public authority must redress the violation of personal and social rights by imposing on the offender an adequate punishment for the crime, as a condition for the offender to regain the exercise of his or her freedom. In this way authority also fulfils the purpose of defending public order and ensuring people's safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated. 47

It is clear that, for these purposes to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not go to the extreme of executing the offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society. Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.

In any event, the principle set forth in the new Catechism of the Catholic Church remains valid: "If bloodless means are sufficient to defend human lives against an aggressor and to protect public order and the safety of persons, public authority must limit itself to such means, because they better correspond to the concrete conditions of the common good and are more in conformity to the dignity of the human person".48 

57. If such great care must be taken to respect every life, even that of criminals and unjust aggressors, the commandment "You shall not kill" has absolute value when it refers to the innocent person. And all the more so in the case of weak and defenceless human beings, who find their ultimate defence against the arrogance and caprice of others only in the absolute binding force of God's commandment.

In effect, the absolute inviolability of innocent human life is a moral truth clearly taught by Sacred Scripture, constantly upheld in the Church's Tradition and consistently proposed by her Magisterium. This consistent teaching is the evident result of that "supernatural sense of the faith" which, inspired and sustained by the Holy Spirit, safeguards the People of God from error when "it shows universal agreement in matters of faith and morals".49
Faced with the progressive weakening in individual consciences and in society of the sense of the absolute and grave moral illicitness of the direct taking of all innocent human life, especially at its beginning and at its end, the Church's Magisterium has spoken out with increasing frequency in defence of the sacredness and inviolability of human life. The Papal Magisterium, particularly insistent in this regard, has always been seconded by that of the Bishops, with numerous and comprehensive doctrinal and pastoral documents issued either by Episcopal Conferences or by individual Bishops. The Second Vatican Council also addressed the matter forcefully, in a brief but incisive passage. 50
Therefore, by the authority which Christ conferred upon Peter and his Successors, and in communion with the Bishops of the Catholic Church, I confirm that the direct and voluntary killing of an innocent human being is always gravely immoral. This doctrine, based upon that unwritten law which man, in the light of reason, finds in his own heart (cf. Rom 2:14-15), is reaffirmed by Sacred Scripture, transmitted by the Tradition of the Church and taught by the ordinary and universal Magisterium. 51

The deliberate decision to deprive an innocent human being of his life is always morally evil and can never be licit either as an end in itself or as a means to a good end. It is in fact a grave act of disobedience to the moral law, and indeed to God himself, the author and guarantor of that law; it contradicts the fundamental virtues of justice and charity. "Nothing and no one can in any way permit the killing of an innocent human being, whether a fetus or an embryo, an infant or an adult, an old person, or one suffering from an incurable disease, or a person who is dying. Furthermore, no one is permitted to ask for this act of killing, either for himself or herself or for another person entrusted to his or her care, nor can he or she consent to it, either explicitly or implicitly. Nor can any authority legitimately recommend or permit such an action".52
As far as the right to life is concerned, every innocent human being is absolutely equal to all others. This equality is the basis of all authentic social relationships which, to be truly such, can only be founded on truth and justice, recognizing and protecting every man and woman as a person and not as an object to be used. Before the moral norm which prohibits the direct taking of the life of an innocent human being "there are no privileges or exceptions for anyone. It makes no difference whether one is the master of the world or the poorest of the poor' on the face of the earth. Before the demands of morality we are all absolutely equal".53 


MAY 2002

God’s Justice and Ours

[Justice Antonin Scalia]

Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be
true if I subscribed to the conventional fallacy that the Constitution is a “living document”—that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.

In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence, our case law dealing with the prohibition of “cruel and unusual punishments.” Several of our opinions have said that what
falls within this prohibition is not static, but changes from generation to generation, to comport with “the evolving standards of decency that mark the progress of a maturing society.” Applying that principle, the Court came close,
in 1972, to abolishing the death penalty entirely. It ultimately did not do so, but it has imposed, under color of the Constitution, procedural and substantive limitations that did not exist when the Eighth Amendment was adopted—and some
of which had not even been adopted by a majority of the states at the time they were judicially decreed. For example, the Court has prohibited the death penalty for all crimes except murder, and indeed even for what might be called run–of–the–mill murders, as opposed to those that are somehow characterized by a high degree of brutality or depravity. It has prohibited the mandatory imposition of the death penalty for any crime, insisting that in all cases the jury be permitted
to consider all mitigating factors and to impose, if it wishes, a lesser sentence. And it has imposed an age limit at the time of the offense (it is currently seventeen) that is well above what existed at common law.

If I subscribed to the proposition that I am authorized (indeed, I suppose 
compelled) to intuit and impose our “maturing” society’s “evolving standards of decency,” this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not
living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul–wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching
a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

But while my views on the morality of the death penalty have nothing to do 
with how I vote as a judge, they have a lot to do with whether I can or should be a judge at all. To put the point in the blunt terms employed by Justice Harold Blackmun towards the end of his career on the bench, when he announced that he would henceforth vote (as Justices William Brennan and Thurgood Marshall had previously done) to overturn all death sentences, when I sit on a Court that reviews and affirms capital convictions, I am part of “the machinery of death.” My vote, when joined with at least four others, is, in most cases,
the last step that permits an execution to proceed. I could not take part in that process if I believed what was being done to be immoral. 

Capital cases are much different from the other life–and–death issues that 
my Court sometimes faces: abortion, for example, or legalized suicide. There it is not the state (of which I am in a sense the last instrument) that is decreeing death, but rather private individuals whom the state has decided not to restrain.
One may argue (as many do) that the society has a moral obligation to restrain. That moral obligation may weigh heavily upon the voter, and upon the legislator who enacts the laws; but a judge, I think, bears no moral guilt for the laws
society has failed to enact. Thus, my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and, for two hundred years, no one believed) that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.

With the death penalty, on the other hand, I am part of the criminal–law machinery 
that imposes death—which extends from the indictment, to the jury conviction,
to rejection of the last appeal. I am aware of the ethical principle that one can give “material cooperation” to the immoral act of another when the evil that would attend failure to cooperate is even greater (for example, helping a burglar tie up a householder where the alternative is that the burglar would kill the householder). I doubt whether that doctrine is even applicable to the trial judges and jurors who must themselves determine that the death sentence will be imposed. It seems to me these individuals are not merely engaged in
“material cooperation” with someone else’s action, but are themselves decreeing death on behalf of the state.

The same is true of appellate judges in those states where they are charged 
with “reweighing” the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed: they are themselves decreeing death. Where (as is the case in the federal system) the appellate judge merely
determines that the sentence pronounced by the trial court is in accordance with law, perhaps the principle of material   cooperation could be applied. But
as I have said, that principle demands that the good deriving from the cooperation exceed the evil which is assisted. I find it hard to see how any appellate judge could find this condition to be met, unless he believes retaining his seat on the bench (rather than resigning) is somehow essential to preservation of the society—which is of course absurd. (As Charles de Gaulle is reputed to have remarked when his aides told him he could not resign as President of France because he was the indispensable man: “Mon ami, the cemeteries are full of indispensable men.”)

I pause here to emphasize the point that in my view the choice for the judge 
who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases.
He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own. Of course if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the
death penalty—and if that fails, lead a revolution. But rewrite the laws he cannot do. This dilemma, of course, need not be confronted by a proponent of the “living Constitution,” who believes that it means what it ought to mean. If the death penalty is (in his 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. (You can see why the “living Constitution” has such attraction
for us judges.)

It is a matter of great consequence to me, therefore, whether the death penalty 
is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the Church’s Magisterium.

The death penalty is undoubtedly wrong unless one accords to the state a scope 
of moral action that goes beyond what is permitted to the individual. In my view, the major impetus behind modern aversion to the death penalty is the equation
of private morality with governmental morality. This is a predictable (though I believe erroneous and regrettable) reaction to modern, democratic self–government.

Few doubted the morality of the death penalty in the age that believed in the 
divine right of kings. Or even in earlier times. St. Paul had this to say (I am quoting, as you might expect, the King James version): Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of
the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore
ye must needs be subject, not only for wrath, but also for conscience sake. (Romans 13:1–5)

This is not the Old Testament, I emphasize, but St. Paul. One can understand 
his words as referring only to lawfully constituted authority, or even only to lawfully constituted authority that rules justly. But the core of his message is that government—however you want to limit that concept—derives its moral authority from God. It 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). Paul of course did not believe that the individual possessed any such powers. Only a few lines before this passage, he wrote, “Dearly beloved, avenge not yourselves, but rather give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord.” And in this
world the Lord repaid—did justice—through His minister, the state.

These passages from Romans represent the consensus of Western thought until 
very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I
think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable
battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God—or any higher moral authority—behind the fools and rogues (as the losers would have it) whom we
ourselves elect to do our own will. How can their power to avenge—to vindicate the “public order”—be any greater than our own?

So it is no accident, I think, that the modern view that the death penalty 
is immoral is centered in the West. That has little to do with the fact that the West has a Christian tradition, and everything to do with the fact that the West is the home of democracy. 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 has taken its firmest hold in post–Christian Europe, and has least support in the church–going United States. I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an
innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” And when Cranmer asks whether he is sure of that, More replies, “He will not refuse one who is so blithe to go to Him.” For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

Besides being less likely to regard death as an utterly cataclysmic 
punishment, the Christian is also more likely to regard punishment in general as deserved. The doctrine of free will—the ability of man to resist temptations to evil, which God will not permit beyond man’s capacity to resist—is central to the Christian doctrine of salvation and damnation, heaven and hell.
The post–Freudian secularist, on the other hand, is more inclined to think that
people are what their history and circumstances have made them, and there is
little sense in assigning blame.

Of course those who deny the authority of a government to exact vengeance are

not entirely logical. Many crimes—for example, domestic murder in the heat of
passion—are neither deterred by punishment meted out to others nor likely to
be committed a second time by the same offender. Yet opponents of capital punishment
do not object to sending such an offender to prison, perhaps for life. Because
he deserves punishment. Because it is just.

The mistaken tendency to believe that a democratic government, being nothing

more than the composite will of its individual citizens, has no more moral power
or authority than they do as individuals has adverse effects in other areas
as well. It fosters civil disobedience, for example, which proceeds on the assumption
that what the individual citizen considers an unjust law—even if it does not
compel him to act unjustly—need not be obeyed. St. Paul would not agree.
“Ye must needs be subject,” he said, “not only for wrath, but also for conscience
sake.” For conscience sake. The reaction of people of faith to this tendency
of democracy to obscure the divine authority behind government should not be
resignation to it, but the resolution to combat it as effectively as possible.
We have done that in this country (and continental Europe has not) by preserving
in our public life many visible reminders that—in the words of a Supreme Court
opinion from the 1940s—“we are a religious people, whose institutions presuppose
a Supreme Being.” These reminders include: “In God we trust” on our coins, “one
nation, under God” in our Pledge of Allegiance, the opening of sessions of our
legislatures with a prayer, the opening of sessions of my Court with “God save
the United States and this Honorable Court,” annual Thanksgiving proclamations
issued by our President at the direction of Congress, and constant invocations
of divine support in the speeches of our political leaders, which often conclude,
“God bless America.” All this, as I say, is most un–European, and helps explain
why our people are more inclined to understand, as St. Paul did, that government
carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.

A brief story about the aftermath of September 11 nicely illustrates how different

things are in secularized Europe. I was at a conference of European and American
lawyers and jurists in Rome when the planes struck the twin towers. All in attendance
were transfixed by the horror of the event, and listened with rapt attention
to the President’s ensuing address to the nation. When the speech had concluded,
one of the European conferees—a religious man—confided in me how jealous he
was that the leader of my nation could conclude his address with the words “God
bless the United States.” Such invocation of the deity, he assured me, was absolutely
unthinkable in his country, with its Napoleonic tradition of extirpating religion
from public life.

It will come as no surprise from what I have said that I do not agree with

the encyclical Evangelium Vitae and the new Catholic catechism (or the
very latest version of the new Catholic catechism), according to which the death
penalty can only be imposed to protect rather than avenge, and that since it
is (in most modern societies) not necessary for the former purpose, it is wrong.That, by the way, is how I read those documents—and not, as Avery Cardinal Dulles
would read them, simply as an affirmation of two millennia of Christian teaching that retribution is a proper purpose (indeed, the principal purpose) of criminal punishment, but merely adding the “prudential judgment” that in modern circumstances condign retribution “rarely if ever” justifies death. (See “Catholicism &
Capital Punishment,” FT, April 2001.) I cannot square that interpretation with
the following passage from the encyclical:

It is clear that, for these [permissible purposes of penal justice] to be achieved, the nature and extent of the punishment must be carefully evaluated and decided upon, and ought not

go to the extreme of executing the offender except in cases of absolute necessity:in other words, when it would not be possible otherwise to defend society. 
Today, however, as a result of steady improvements in the organization of the 
penal system, such cases are very rare, if not practically nonexistent.
(Emphases deleted and added.)

It is true enough that the paragraph of the encyclical that precedes this passage

acknowledges (in accord with traditional Catholic teaching) that “the primary
purpose of the punishment which society inflicts is ‘to redress the disorder
caused by the offense’” by “imposing on the offender an adequate punishment
for the crime.” But it seems to me quite impossible to interpret the later passage’s
phrase “when it would not be possible otherwise to defend society” as including
“defense” through the redress of disorder achieved by adequate punishment. Not
only does the word “defense” not readily lend itself to that strange interpretation,
but the immediately following explanation of why, in modern times, “defense”
rarely if ever requires capital punishment has no bearing whatever upon the 
adequacy of retribution. In fact, one might say that it has an inverse

How in the world can modernity’s “steady improvements in the organization of

the penal system” render the death penalty less condign for a particularly heinous
crime? One might think that commitment to a really horrible penal system (Devil’s
Island, for example) might be almost as bad as death. But nice clean cells with
television sets, exercise rooms, meals designed by nutritionists, and conjugal
visits? That would seem to render the death penalty more, rather than less,
necessary. So also would the greatly increased capacity for evil—the greatly
increased power to produce moral “disorder”—placed in individual hands by modern
technology. Could St. Paul or St. Thomas even have envisioned a crime by an
individual (as opposed to one by a ruler, such as Herod’s slaughter of the innocents)
as enormous as that of Timothy McVeigh or of the men who destroyed three thousand
innocents in the World Trade Center? If just retribution is a legitimate purpose
(indeed, the principal legitimate purpose) of capital punishment, can one possibly
say with a straight face that nowadays death would “rarely if ever” be appropriate?

So I take the encyclical and the latest, hot–off–the–presses version of the

catechism (a supposed encapsulation of the “deposit” of faith and the Church’s
teaching regarding a moral order that does not change) to mean that retribution
is not a valid purpose of capital punishment. Unlike such other hard Catholic
doctrines as the prohibition of birth control and of abortion, this is not a
moral position that the Church has always—or indeed ever before—maintained.
There have been Christian opponents of the death penalty, just as there have
been Christian pacifists, but neither of those positions has ever been that
of the Church. The current predominance of opposition to the death penalty is
the legacy of Napoleon, Hegel, and Freud rather than St. Paul and St. Augustine.
I mentioned earlier Thomas More, who has long been regarded in this country
as the patron saint of lawyers, and who has recently been declared by the Vatican
the patron saint of politicians (I am not sure that is a promotion). One of
the charges leveled by that canonized saint’s detractors was that, as Lord Chancellor,
he was too quick to impose the death penalty.

I am therefore happy to learn from the canonical experts I have consulted that

the position set forth in Evangelium Vitae and in the latest version
of the Catholic catechism does not purport to be binding teaching—that is, it
need not be accepted by practicing Catholics, though they must give it thoughtful
and respectful consideration. It would be remarkable to think otherwise—that
a couple of paragraphs in an encyclical almost entirely devoted not to crime
and punishment but to abortion and euthanasia was intended authoritatively to
sweep aside (if one could) two thousand years of Christian teaching.

So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American
Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty;
or if American Catholics were subject to recusal when called for jury duty in capital cases.

I find it ironic that the Church’s new (albeit nonbinding) position on the 
death penalty—which, if accepted, would have these disastrous consequences—is said to rest upon “prudential considerations.” Is it prudent, when one is not certain enough about the point to proclaim it in a binding manner (and with
good reason, given the long and consistent Christian tradition to the contrary), to effectively urge the retirement of Catholics from public life in a country where the federal government and thirty–eight of the states (comprising about 85 percent of the population) believe the death penalty is sometimes just and
appropriate? Is it prudent to imperil acceptance of the Church’s hard but traditional teachings on birth control and abortion and euthanasia (teachings that have been proclaimed in a binding manner, a distinction that the average Catholic
layman is unlikely to grasp) by packaging them—under the wrapper “respect for life”—with another uncongenial doctrine that everyone knows does not represent the traditional Christian view? Perhaps, one is invited to conclude, all
four of them are recently made–up. We need some new staffers at the Congregation of Prudence in the Vatican. At least the new doctrine should have been urged only upon secular Europe, where it is at home.

Antonin Scalia is a Justice of the Supreme Court of the United States. This
article is adapted from remarks given at a conference sponsored by the Pew Forum
on Religion and Public Life at the University of Chicago Divinity School.

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The Goal: To Rehabilitate Persons

The Necessary Step: Crossing the Epistemological Threshold From "Nature" (Object) to "Person" (Subject): Mimi Silbert - How to do it.

The Mimi Silbert story

Re-cycling ex-cons, addicts and prostitutes

By Jerr Boschee and Syl Jones


 They call themselves “human garbage” . . . Burglars, car thieves, armed robbers, pushers, prostitutes, even murderers. Only sex offenders are not welcome. They come to Delancey Street with an average of 18 felony convictions, seven years in prison and no better than an eighth grade education. Most are illiterate, and few have ever held a skilled job for more than a few months. More than 85 per cent have been heroin addicts for an average of ten years, and better than 60 per cent have abused two or more drugs. They range in age from 18 to 68, are equally divided between African Americans, Latinos and Anglos, and one-fourth are women.

It’s a recipe for disaster, especially since Delancey Street uses no staff counselors, no social workers and no paid professionals -- the traditional gurus who speak the language of social and psychological pathology. “These are people who have really hit bottom,” says Mimi Silbert, who’s led the organization since she and John Maher started it in 1971. “They’re angry and hopeless . . . and they hate everybody. They hate each other and they hate themselves. But it doesn’t matter to us what they’ve done. We take the people everybody else thinks are losers . . . our only criteria is that they want to change badly enough.”

The residents stay at Delancey Street for an average of four years and soak up an education that spans vocational, cultural and social training. The “professors” are the reformed convicts and junkies themselves . . . and not all of them make it. The attrition rate is 35 per cent, but, as Silbert says, “Delancey Street attracts the worst of the worst, and some people just aren’t ready to make the kind of commitment we make here.”

Each resident is required to earn a high school equivalency degree and learn three marketable skills. One must involve physical labor such as construction, moving or automotive; another must be accounting- or secretarial- or computer-related; and, finally, every resident is exposed to people occupations such as waiting tables or doing sales. Once they've experienced all three, residents are free to major in one of them.

Delancey Street has never sought philanthropic or government support. Most of its annual operating budget of $24 million comes from the profits generated by more than 20 businesses, each of which doubles as a training school. Approximately 1,500 residents live in five facilities around the United States, including a spectacular residential and retail complex on San Francisco’s waterfront (built by the residents themselves), a ranch in New Mexico, a castle in rural New York, and facilities in Los Angeles and North Carolina.

To date, Delancey Street has graduated more than 12,000 people, many of whom have gone on to become lawyers, doctors, teachers, police officers, business owners, firefighters, electricians, mechanics,contractors, salespeople . . .
And, after all these years, the organization is still led by a 95-pound dynamo who stands less than five feet tall, her hands and arms constantly moving, emotions racing across her tanned and weathered face . . .

 – The Mimi Silbert story


Mimi Silbert is a realist.

“You don’t do this and not get burned,” she says. “Repeatedly. The people who come here are self-destructive. They’re nasty, vicious, violent, greedy, take-and-run users. “My job is to be the chief believer, to believe in them when they don’t believe in themselves . . . but that means they go out of their way to prove to me how wrong I am . . . because they’re scared pissless that they don’t have it . . . and that if they ever really try, they won’t make it anyway . . .

“So everything in them wants to prove it’s all bullshit, and they do everything they can to betray my belief in them. Sometimes that self-destructiveness wins, and they’ll choose the meanest thing they can think of to hurt me . . . whatever it is I’ve been begging them to do, or yelling at them to do, that’s what they’ll say to me on their way down and out, whatever will hurt the most.” Then her passion fills the room. “But I deal with it . . . because there have been thousands more that are the opposite . . . and the courage it takes for them to succeed is so much greater than the courage it takes for somebody like me to say, ‘Yeah, somebody burned me.’ That’s the business I’m in. Get over it, honey. It isn’t easy, but it’s what you have to do. It isn’t easy to change their lives. It isn’t easy for me, either. I cry, I get depressed, but I choose to remain naive. It is my choice in life to insist upon always believing in the best of everybody . . . because I’ve seen the most incredible people at the bottom rise to become the absolute best of themselves.

 “I don't mean they have to become lawyers or something. I mean, we have people who were such dirtbags in the past and they have gained integrity. Yeah, they make a good living, they do well, many of them. But they are so decent and helpful to others. That's what's really important . . . ” She pauses, catching her breath, and after a quiet moment she looks up and says: "I guess when I  think about it, what happens here at Delancey Street is that I’m the role model for the residents when they first come here. Then, later, they become my role models."


And Mimi Silbert remembers.

Every day, before dinner, she and her parents would gather around the radio for the news of the day. If they heard about three boys stealing from an elderly woman, her parents would “go from saying, ‘Imagine, that poor little lady . . . ’ to ‘Imagine how miserable their lives must be for those kids to steal from a little old lady.’

“I was really lucky in the draw,” she says. “I had two of the most loving, supportive parents, and they
had a deep sense of justice.” Born in 1942 and raised just outside Boston, she was the only child of Dena and Herbert Halper, European Jewish immigrants who came to America at the turn of the century, two of many who lived in tenements on the original Delancey Street on the lower east side of New York. At Seder, a holiday usually reserved for family members, her father would invite poor strangers to their dinner table, and his generosity carried over to his business. He owned and operated a corner drugstore, where his daughter worked as a soda jerk. “I remember some old and poor people coming in,” she once told the San Francisco Examiner. “My father would say, ‘When they go to buy something, put it in a large bag, and when they go to the cash register, turn around and don’t look.’” Once, she turned and saw an older man dumping an aspirin bottle into his bag. She said, “Daddy, I think so-and-so is taking something,” and she remembers how angry he became. “He said, ‘I told you not to look. That man needs those things. Something is very wrong when he can’t buy them. We don’t want him to feel he’s taking charity. You’re not to turn around again because you’re not to make him feel bad.’

   “I came of age in a place and time where the blacks spoke Yiddish,” she recalls, “and the Jews spoke their own version of black Southern dialect. My dad came from Poland, my mom from Lithuania. My grandparents and uncles and aunts and cousins lived with us because the idea was to help each other get up and out of the ghetto. Eventually, most everyone in that neighborhood went on to become doctors and lawyers. The level of loyalty and support was fantastic in those days. Not like it is today. It was an absolutely wonderful place to grow up,” and Silbert has been working for nearly 30 years to create an organization that replicates the kind of neighborhood and the kind of upbringing she received as a child. In high school, Silbert became a cheerleader . . . who read Dostoyevsky when she wasn’t doing flips. She was voted “nicest girl” in her high school class, an “honor” she found so humiliating that “right afterwards, I taught myself how to swear.”
While still in high school, she began helping kids in trouble, and she continued reaching out during her years at the University of Massachusetts. One day she went to a local drugstore for an ice cream sundae and “found a kid who hung around there who clearly should have been in school. I started talking to him and, sure enough, he was cutting school. I slowly worked with him. I figured out what was wrong. I brought him back to school, went to see his family and patched things up. There was a lot of hostility going on in the house. No one even knew he had dropped out of school.” Some years later, her dropout graduated from MIT.

After college, Mimi studied under the famous existentialist philosopher Jean-Paul Sartre in Paris. From him she learned “there is no given meaning to life, that you have to make that meaning . . . ” Later, at the University of California at Berkeley, she earned a double doctorate in psychology and criminology and then taught at Berkeley and San Francisco State. She became a consultant to prisons, mental health programs, halfway houses and police departments. By 1971 she was married and raising twin sons.


That’s when she was approached by an ex-con named John Maher, a recovering alcoholic and heroin addict who had served prison time for what Silbert describes as a series of petty crimes. He suggested they set up a self-supporting rehab center for ex-cons, an idea Silbert had also been considering. Maher argued that traditional rehab programs don’t work, that it takes an ex-addict to understand the gut-wrenching pain of quitting heroin cold turkey, the misery of shivering in an alley on a winter night, the wasted hours behin       ........... 

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