Prejean vs. Scalia, Round One

hen The Texas Observer talked with Sister Helen Prejean back in January, Illinois Gov. George Ryan had just stunned the nation by commuting the death sentences of 167 inmates on death row. This came after 13 prisoners waiting to die were released and before other questionable cases were re-opened. “I am not prepared to take the risk that we may execute an innocent person,” Ryan wrote in a letter to the families of crime victims. A lengthy story on Ryan’s move in The New York Times noted that since the death penalty was reinstated in 1976, 102 men and women sentenced to death nationwide were exonerated and freed from prison.

The irrepressible Prejean was in town for the Austin premiere of an opera based on her best selling 1993 book Dead Man Walking. The morning after the show, Prejean met visitors at the house of fellow Louisiana native and current Austin Bishop Gregory Aymond. Prejean speaks across the nation explaining why capital punishment in the United States is not a fair or just system. In her folksy manner, she took time to talk about everything from the racism underlying the death penalty, to a recent run-in with Supreme Court Justice Antonin Scalia, to the latest book she is writing.

Since those cold days in January, Sister Helen’s words have become, if anything, more pertinent to what is presently happening in Texas, which recently executed Keith Clay, its 300th person since the death penalty’s reinstatement in 1976. An enormous scandal involving the Houston Police Department’s crime lab is exposing just how capricious justice is in the county that puts more people to death than any other. Over decades, and unbeknownst to Harris County defense attorneys, tainted evidence from the lab was used to convict people. The problems affect several other counties that used the facility. Despite widespread calls for a court of inquiry to investigate cases affected by the lab, Harris County District Attorney Chuck Rosenthal is opposing one and refuses to step aside for the appointment of a special prosecutor. He claims there is no conflict of interest, despite the fact that his office prosecuted the very cases he now investigates. It seems just a matter of time before evidence emerges that Texas has already executed an innocent person, even if Rosenthal doesn’t find it himself. Problems are also surfacing at the Fort Worth Police Department crime lab.

Meanwhile in the legislature, at press time, a bill by Sen. Rodney Ellis (D-Houston) to create a state oversight body to regulate crime labs was voted out of committee and awaits a hearing on the floor. Another bill by Rick Noriega (D-Houston), which has yet to be heard, would call for the automatic appointment of a special prosecutor in cases like the Houston crime lab. Prosecutors are fighting tenaciously to have a jury assess the mental capacity of a defendant in death penalty cases after the trial instead of before. Their reasoning seems to be that juries will be more willing to judge someone mentally competent to be killed after the prosecution has shown them to be monsters. At some point this will inevitably cost taxpayers more money when, after a costly capital trial, a jury does decide the defendant is mentally retarded. The district attorneys who need scalps to wave in order to get elected don’t seem to care. Finally, there are a number of death penalty moratorium bills. While the prospects for an outright moratorium look dim, there is more hope for legislation to create an interim study to look over the issue. But any death penalty reform will have to get past Gov. Rick Perry, who, despite mounting evidence to the contrary, continues to insist that there is nothing wrong with Texas justice.

The Texas Observer: Have you seen a change in the public’s opinion on capital punishment in the 10 years since the publication of Dead Man Walking?

Helen Prejean: Yes. It’s beginning … I think over 90 percent of people in a poll will say they think that an innocent person has already been executed. They know we have a system that is deeply flawed. And so that is what we are working on right now to help people come to a question of decency: Do we have to keep doing the death penalty? moratorium. Stop while we take a hard look and decide what it is we need to do.

My job is to bring home patterns to people. Let me show you how this works. I’m doing a book right now called Impossible Burden where I accompany two innocent people to execution. I don’t prove it in a court of law, but the reader will be the jury they never had because they are poor people and they get such poor defense. For truth to come out at trial you need to have an adversarial system. Point counterpoint. Forensic testing by the prosecutor’s crime lab and independent forensic testing. When you don’t have good defense, it’s a wash.

The reason I’m calling my book Impossible Burden is that it ends up being a burden that is impossible for everybody including the juries. Imagine how the juries feel who sentenced the 13 people who had to be released from Illinois’ death row!

You are asking people like you and me to go behind closed doors to decide if a person lives or dies. One of the things that I am going to show in this book is that we have impossible guidelines to follow. In the Gregg decision the Supreme Court put the death penalty back. You know, four years earlier they had overturned the death penalty declaring it unconstitutional, not per se that it was cruel and unusual, in and of itself, but that it was arbitrarily and capriciously applied. So supposedly in Gregg when they put it back, they gave guidelines to guide juries in their discretion, so it won’t be a thing like an act of lightening. Look at Furman . To have law you have to have a reasonable and systemic way, at least reasonably predictable, to predict an outcome. When you don’t have that you have chaos. And when you have chaos you don’t have reasonableness. You don’t have law. So you don’t have the protection that the Constitution offers of due process and that kind of thing.

TO: So you had a run-in with Supreme Court Justice Antonin Scalia?

HP: I’m writing this book and I’m struggling for voice in the last chapter because the arguments were good, but too analytical, and I need a personal way to show the drama. And doggonnit if I don’t get off the airplane in New Orleans coming from Georgetown, alma mater, where I had just given a talk, and who is standing there fiddling with his compact disc player but Antonin Scalia, who goes duck hunting with my brother Louis. Can you believe that!

I look at him, and I go, ‘my goodness it’s Scalia’. I go up to him. He’s very witty you know, very sharp. Sharp in some ways, but I’m beginning to find, he’s not sharp. So I go, “Are you Scalia?” And he replies, “Somebody’s got to be.” I said, “Well, I am Sister Helen Prejean, I’m Louis Prejean’s sister.” He goes, “You Louis’s sister? What a great guy. He’s a fine guy.” We talk about Louis a little bit. Then I ask, “You get any ducks?” And he says, “Nothing in the sky. Nothing flying.” Then I said, “Justice Scalia, I want to tell you something: I’m writing a book about two innocent people that I have accompanied to death and I know what you said.”

I have the advantage now at long last. He gave some talks very publicly at the Pew Forum on Religion and Public Life at the University of Chicago. And he laid out his thoughts, the way he argues constitutionally, and his theology. He basically quotes Romans 13 that the government has divine authority behind them and that they are doing the wrath of God. This is the vengeance of God. He is clearly God’s agent. Individuals can’t kill people, we have to follow Christ on that. But government has been given divine authority, and the sword has been given to them. He interprets sword as the death penalty. It actually doesn’t even mean that. And so I tell him this, “I just want you to know that I am going to take you on in this book.” It was like a declaration of intent. And he goes, “I’ll be right back at you.”

TO: Texas is a state animated by evangelical Christianity. Now more than ever, the leadership of this state is fundamentalist. Is there a connection between a certain kind of self-righteous and judgmental fundamentalism and the death penalty?

HP: Here is how fundamentalism works. You do proof texting. You go to the Bible to find the quote to back up what it is you say. And here, it’s the absolute power of government … So you have this whole thing of identifying God and what God wants, what God’s will is, which we know is vengeance, and that is unquestioned too, by people in power. we can be God’s agents. What is so dangerous is that it’s not porous. It’s not open. It’s got that absolute. It seals all off all the other avenues. God said it, I believe it, that’s it. They laminate it over from any kind of openness of dialogue.

There are 10 southern states that have always done the executions in this country; 80 to 85 percent of all executions happen in 10 southern states. And it’s part of a pattern. One part is that you have to have God back up what you are going to do. And you can trace it back to the days of slavery. They quoted the Bible that God was behind slavery too. And the death penalty comes right out of slavery. After slaves were freed you have these legislatures and of course where you have a significant number of African American people in a population, the big thing is to control the blacks.

The states that execute the most are where they have a significant number of black people in their population that they feel have to be controlled. So the criminal justice system—the legislative system—is dominated by whites. You look back in the days after slavery and you can find these black codebooks that showed when a black person did a crime what the punishment was and when a white person did a crime what the punishment was. A white person would have to kill a room full of people—and other whites, but if a black stole an apple, a black looked at a white woman wrong….Virginia, after slavery, had laws where a white person would get as much as three years of prison for a crime that would warrant a death sentence for a black. You can see it. And it’s still present. Just look at Texas.

And you also have to look at victims. If you look at death rows across the country, when the death penalty is sought, it is when white people are killed. That is where the outrage is. That’s where the identification is. It’s one of us. When black people are killed it’s hardly a blip on the radar screen. Fifty percent of all homicide victims in this country are people of color.

Most people couldn’t do something if they didn’t feel in some way that the God they believed in backed it up. So move away from the strict fundamentalists. You have a lot of people who say ‘the Bible says’…Then you have to take them through that. In the Old Testament there were 37 different crimes for which you could get the death penalty: from touching sacred objects in the temple to disrespecting the priest and your parents to homosexuality. I love telling college students that if you had sex with animals, you got the death penalty and the animal did too whether or not the animal was consenting! They always laugh. But that was a nomadic community and they didn’t have prisons and so punishments were harsh and swift.

So if you are going to quote the Bible for murder, “those that shed blood will have their blood shed” what about all those ? You get to select which of the things from the Bible are right?

College students get this. I can take them through the Bible. Judaism puts so many restraining laws. Christians will want to say yeah, the Jews are vengeful, but Christians are compassionate, we follow Jesus, we follow mercy. In Judaism they put so many restraining laws. You had to have two positive eyewitnesses….

TO: How has the church’s position on this changed?

HP: I am going to talk about the change in this book Impossible Burden. I got to have a dialogue with the Pope. And I got to put into the Pope’s lap 14 years of experience of what it means to walk with human beings that are being killed. The Catholic Church has this thing about the dignity of life—the inviolable dignity of life. And I point out to the Pope there is no dignity in a human being who says to you, “Sister, pray to God that He holds up my legs as I walk to death.” There is no dignity in this. And when I looked at Catholic teaching, in the catechism and so forth, it was the dignity of the innocent. And that was the question: Is it only the innocent? What about the guilty? That happened in 1997. And then when the Pope came to St. Louis in 1999, he had been in the United States four other times and had never mentioned the death penalty. And then for the first time, he positioned the death penalty in with the other pro-life issues. He said the dignity, not just of the innocent, but of the guilty. We cannot execute people because it is against their dignity. So now, since the Pope came up, you have the bishops lining up. You can’t just say to Catholics, the catechism changed, the Pope says….You have to take them on a spiritual journey of a change of heart. That’s what it’s all about. We have to energize the people in the pews.