The Death Penalty: What’s All the Debate About?
Thank you to all who attended and participated in the “Call for Reckoning” conference on January 25, 2002. Over 500 people from around the country filled the Divinity School’s lecture hall and several overflow rooms to hear the speakers reflect on religion and the death penalty. Provocative questions and profound reflections were offered by attendees and speakers alike throughout the day.
At a time of heightened controversy surrounding the death penalty, most discourse relies upon the political, philosophical, and legal dimensions of the practice, and its racial and social implications. Quite often in this debate, religious traditions and theological perspectives are not fully explored beyond an occasional reference to “an eye for an eye” or calls for mercy and forgiveness. Religious voices, however, provide unique standpoints and important reflective dimensions that illuminate these political and other accounts of capital punishment.
This conference brought together scholars of various faiths and religious backgrounds from the fields of politics, religion, and law to take up a broad range of views on the death penalty. Special attention was given to the following guiding questions:
What resources does religion-including religious beliefs, traditions, and institutions-provide in shaping current views about the death penalty?
In what ways do faith traditions and theological ideas shape how justice is conceived of and meted out? How do positions both for and against the death penalty draw upon various theological understandings of justice? Are these political and religious accounts of justice ultimately reconcilable?
What role ought religious beliefs play in a pluralistic democratic society that often presumes strict boundaries between matters of private faith and political life? How might citizens, jurors, neighbors and people of faith draw upon religious ideas in carrying out their civic responsibilities?
With a discussion of these questions in hand, this symposium grappled with the relationship between religion and public life as it pertains to what is often called the “ultimate punishment.”
SPECIAL LUNCH SESSION: The Death Penalty: What’s All the Debate About?
LUNCH ADDRESS BY:
THE HONORABLE FRANK KEATING
GOVERNOR OF OKLAHOMA
JEAN BETHKE ELSHTAIN: We are so pleased to have with us Governor Frank Keating, who is the governor of Oklahoma. He was elected the governor in 1994 just five months before the bombing of the Murrah Federal Building in Oklahoma City. So he has had a baptism of fire on this issue. The Honorable Frank Keating, Governor of Oklahoma.
GOV. KEATING: Professor, thank you very much, and to the University of Chicago and to the Pew Forum, thank you for this magnificent discussion of an extraordinarily important subject.
I’ve got to say that I am the tinkling cymbal here not the sounding brass. I cannot imagine being invited to speak when we have so many very deep and very thoughtful individuals who have been heard previously. I am honored.
I thought I would give you some of my thoughts and reflections from my perspective, from a public policy perspective, from a governor’s perspective, those of us, 50 of us who have a role to play in the capital punishment debate, because we are sworn to uphold the law in our states and we participate in the debate as well. I think my perspective might be of some interest to you ladies and gentlemen.
First, let me say that about two years ago I was invited by University College, Dublin – those of you who are Catholics might remember it as the place where John Henry Newman held forth with such extraordinary wisdom. Keating is an Irish name, but it was the first time I had ever been to the Republic of Ireland. I’m a Catholic but of my four grandparents, one was a Methodist, one was a Presbyterian, one was a Quaker, and one was a Catholic. My mother was not a Catholic, but later became one. My wife was not a Catholic. We were not married in the Catholic Church. Later she became one. So we really come from a very diverse ecumenical background.
So, I had never been to the Republic of Ireland and I arrived as a guest to participate in a debate on the subject of capital punishment. Of course, I had to look up the Keatings. I didn’t realize that was a rather common name. We found some Keatings, went to lunch and toured Dublin. And one of the individuals who was my host said, “Why are you here?” And I said, “Oh, I’ve been invited to debate capital punishment.” To which she said, “Well, there’s no debate; we’re against it.” (Laughter.) And I said, “Well, I realize that, but really?” And he said, “Yes, I mean no one’s for it. Where are you debating capital punishment?” And I said, “At University College, Dublin.” And she said, “Well, they’re all against it there, too. You really should not have even come. This is a waste of your time.” (Laughter.)
Those of you who have ever been to those classrooms, those amphitheater environments, everybody is smoking and there are probably 200 or 300 students. The format was for the Chief Justice of the Irish Supreme Court to be the moderator and there were two barristers against and two barristers for. I was one of the barristers for. The problem was my guy didn’t show up — (laughter) – so I was a lone ranger; I was all by myself.
But several of the things I said came as somewhat of a surprise to my Irish listeners. The impression they had was that the United States is a killing field, that we execute everyone for everything, and that it is a killing field largely focused on minorities. When I explained to them that the United States’ problem is its incredible violence, our problem as a country is that we – in many cities and in many rural areas – treat life cheaply. For example, the big shock was when the prime minister of Ireland said that the year previously they had had 40 homicides in Ireland. We had 60 in Oklahoma City; they had 40 homicides in the entire country the year previous.
When some who were Catholics pointed out that the pope felt that capital punishment should be rare if nonexistent, I said, “Well, in the United States, believe it or not, that is practically true.” Between 1977 and the time of my speech – and it’s changed somewhat obviously unfortunately on the high side of homicides since then – we had something like 480,000 homicides and 629 executions. So for 480,000 deaths, we executed 629 people, something like 1/12th of 1 percent of the killings resulting in executions. If you applied that same standard to the Republic of Ireland, they wouldn’t execute anybody either, because 1/12th of 1 percent of 40 people is zero. There is no one out there.
In the state of Oklahoma in the heartland of America, right in the middle of the United States we had 8,000 homicides since 1977 and 30 executions, something like 1/2 of 1 percent of the killings in our state resulting in executions.
Thirdly, the Irish listeners were surprised that there was anguish on the part of those of us who consider ourselves conservative. I’m a pro-life conservative. I believe in the quality of each individual life, in the goodness of every human being and the right of everyone to stand tall, to do that which he or she can do in this magnificent free society in which we live. But they were surprised that there was anguish and debate — and in our many different religioned environment (only 3 percent of the people in my state are Catholic) – that we have a very vigorous debate on capital punishment. I think that is good and that’s why I think, Professor, this is very important that we are discussing this subject today.
My friends were also surprised that in my state the average time between conviction and execution was ten years. They thought that if somebody committed a crime, somebody was quickly executed. They were also surprised to learn that nationally that statistic was a little bit less than ten years, but it’s nearly double digits the number of years that pass between the time a killing results in a conviction to the time of execution.
Yes, it is true, I said, that we have offenses certainly at the federal level for trafficking large amounts of narcotics, treason, where the death sentence can be applied, but for all practical purposes certainly at the state level capital punishment is reserved for people who kill other human beings.
They also were surprised that a life sentence was not a life sentence. In my life I have been an FBI agent, I’ve been a state prosecutor, I’ve been a United States Attorney, I supervised all the federal prosecutions in the United States and many of the law enforcement agencies, most federal law enforcement agencies in the country, including the U.S. Bureau of Prisons. It came as a surprise to them that we had situations where people were sentenced to life in prison without parole and it didn’t mean that, that people were released, people escaped, people killed other people while in prison, and that happens, by the way, far more frequently than we think.
Our moral challenge as a people not only is to continue debating this subject but also to try to make us a better people. We kill too many people and we have far too much violence, far, far too much violence.
My background is a law enforcement background, not a divinity background. I remember as an FBI agent in Seattle, Washington I went to Seattle-Tacoma Airport during Christmas week and opened the door of a van and out tumbled a man who had been shot in the temple. He was the driver of that van and in the course of robbing him, his assailants had killed him. And I remember going to the home of his widow and his children and they had a Christmas tree and they had tinsel and they had lights and it was a very moving, a very wonderful, a very special, a very seasonal scene. And there I was talking to them about the father and the husband that they would never see; it just broke my heart that someone could do this to somebody else.
I must confess that probably some of the most ardent capital punishment advocates are people like me who have seen up close and person the flotsam, the jetsam of those who horribly, cruelly treat other people.
I remember in Ireland at my talk I said, “You tell me what I do with someone like Roger Dale Stafford, the first execution on my watch as governor.” Now, let me say there are some governors that don’t have the pardon power, that don’t have the authority to commute or to grant clemency, and I’m one of those. That power had to come from the Pardon and Parole Board. If they recommend clemency, then I decide yes or no, but that is not something that I have that some other governors have, particularly in the states of the Northeast where the governor can decide for himself whether or not he’s going to grant clemency.
But I said, tell me what you do with a Roger Dale Stafford, who south of Interstate 35 in Oklahoma City waved down a car consisting of a staff sergeant of the Air Force and his wife and their eight-year old son. He took the staff sergeant over the hill and he shot him in the face and killed him. This was a robbery. He took his wife over the same berm and shot her and killed her and he came down to the truck, and, whimpering in the back of the cab of the truck, wrapped up in blankets trying to get away from it all, was this eight-year old son, and he fired until he was out of bullets in the back of the truck until the whimpering stopped. Then he went to Oklahoma City in a steakhouse, a family type restaurant. It was closing up and he herded five 15-year olds into the freezer and killed them execution style as a part of taking money from the cash register. Now, what do you do with someone like that?
My sense of ethics, my sense of morals, my sense of right and wrong is one that says for someone who bounces a check you don’t chop off their hand but for somebody who kills eight human beings they forfeit the right to live. That is my sense of values, my sense of ethics.
Now, obviously if the state of Oklahoma or the state of Illinois or the United States were to move in another direction, I take an oath to uphold the law and I would do so – not necessarily with a smile but I would do so – because I look at someone like that and I say that this good earth, this wonderful land is too good for him. I believe that.
Timothy McVeigh killed 168 of our neighbors and friends in Oklahoma City, including 19 children. Now, people say when you debate the death penalty you shouldn’t get into emotions, you shouldn’t talk about individuals, but you have to because that’s what it is all about, people doing horrible incredibly sick, evil things to other people.
And to have someone like Timothy McVeigh making a political statement, knowing that there was a daycare center in a building and blowing it up and seeing the wreckage, the carnage that resulted, the anguish, the agony, the destruction of lives and livelihoods and happiness and future that resulted, I am unforgiving.
I think, of course, that we want to make sure we have the right person. I think, of course, that that individual has the rights and the full panoply of the criminal justice system, including a first rate defense. But when it is over, in my judgment, the law should be carried out, if that is what a judge or a jury decides. That does not cause me much disquiet. I don’t have a sleepless night.
Now, for those to say, “But isn’t there a chance that you would execute the innocent,” there’s no evidence of that. Even Barry Scheck admitted that that, as far as he knows, has never occurred; there’s no evidence of it. But, yes, that is something that all of us have to be very concerned about. I would like to think that it’s enough that ten to 12 years pass between conviction and execution, that the average number of appeals is something like 12 in both the state and the federal system, that no governor, no pardon or parole board wants to execute an innocent person. Why? Because the guilty person would be free. Why would any of us want an individual responsible for what Tim McVeigh did or Roger Dale Stafford did to be walking the street? We want the right person identified and removed from society. That is what our responsibility is.
We’ve done one thing in Oklahoma that I would recommend to other states and then we’re debating a second that I think does have some merit. Look what George Ryan did here in Illinois about the prospect of some innocent person being executed. If I were George Ryan I would have done exactly the same thing. If you have evidence that there is suborned perjury or fabricated evidence, then certainly you stop the wheels and get to the bottom of it and clean it up, clean out that stable. What we have done in Oklahoma is to require that every felony case and certainly every capital case have, at our expense, DNA testing. And I think that’s very sound. Now, many cases don’t have DNA testing available because there is no evidence in the case that would be subject to such testing.
Secondly, I have said that if the Pardon and Parole Board recommends to me clemency, and I have granted clemency in some cases, I think “proof beyond a reasonable doubt” with respect to capital cases is too low a standard. I’ve said that publicly at home and I apply it in my own case. If the governor is asked to determine yes or no on a particular capital event, then what is my burden? Basically, whatever burden I seek to establish, there is nothing written.
As Justice Scalia notes, in the federal system we define “proof beyond a reasonable doubt.” State systems generally don’t. In Oklahoma we don’t. But in the federal system, it is defined as proof of such a convincing character that you would rely up on it unhesitatingly in the most important of your affairs.
Is that a high enough standard when you’re taking another person’s life? I think there should be a moral certainty standard, which I apply to myself. If I don’t have in these cases a confession or physical evidence, if I don’t have that even higher standard than proof beyond a reasonable doubt, I’m willing and do commute.
But once that standard is established in my own mind – and this is not easy, because you’re dealing with another human being – if that standard is applied, I with no hesitation can deny clemency, because I believe if we love and elevate human life — that means innocent human life — for those who would intentionally, with malice, with violence, take another human being’s life, that person has forfeited the right to live. That is my value system, but obviously I’m one citizen. We’re a hundred people in here, 200 people, whatever it is. We all have our views on that subject, but I feel as a result of my own life experience this is where I am.
It is not easy. But I want to say in conclusion that it is a thrill to participate in this discussion, because this is certainly an extremely important discussion for all of us as Americans to engage in.
Thank you very much.
JEAN BETHKE ELSHTAIN: My co-chair, E.J. Dionne and I are going to start the questioning, and I’ll put the first question to Governor Keating, and it’s this: Governor, it would seem that on your view the protection that if you could find another way other than execution to protect society from further harm at the hands of the sorts of people that you have described, that that is compelling but insufficient as far as you’re concerned to forestall capital punishment altogether; that is, it seems that your views are shaped more by a concern with justice and the requirements of retributive justice. Am I correct in that assumption?
GOV. KEATING: Well, I think to a certain extent you’re absolutely right. As I said, if you bounce a check you don’t lose a hand. If you with malice take one life, you forfeit your own.
But let me say this: If we could assure ourselves that an individual who did something horrific, killed another human being, could, in fact, be segregated forever, would I be open to that? As a public policy person, certainly, but as a practical matter that simply wasn’t, isn’t, nor ever will be. At the federal prison in Marion, Illinois – which was the only Level 6 prison when the Federal Prison System was under me – we built a special building for an individual who killed three guards. A special building — I mean, a building. How many more does he have to kill before we decide this individual isn’t deserving of the building? And that’s the thing that bothers me. Who in the world is going to work in a correctional facility with someone like that? It’s just beyond comprehension to me and I, as a result, would err on the side of public safety and not on the side of the guy that wants his building.
E.J. DIONNE: I just wanted to start because the University of Chicago is a well known football school the way the University of Oklahoma is — (laughter.)
GOV. KEATING: And you can’t have our coach. (Laughter.)
E.J. DIONNE: I wanted to share something from going through Governor Keating’s statements and writings. When former Senator David Boren became president of the University of Oklahoma, Governor Keating said that he was attempting to build a university of which the football team can be proud. (Laughter.)
GOV. KEATING: That’s true.
E.J. DIONNE: I wanted to first just ask the old high school debater’s question that’s raised by your comment on only 40 murders in all of Ireland versus 60 in Oklahoma City alone. Ireland doesn’t have the death penalty. We have the death penalty. Isn’t this a comment on the deterrent power, or lack thereof, of the death penalty? If one of the central arguments is deterrence, what do these numbers tell us about deterrence?
GOV. KEATING: Well, I’m not sure they tell us a whole lot. They certainly tell us that the United States is a far more violent place than the Republic of Ireland. Maybe that’s the result of our dysfunctional family life. Maybe that’s the result of out-of-wedlock births and divorce and all of the various breakdowns that we experience in society.
The debate, as you know, E.J., is very much joined as to whether or not capital punishment is a deterrent. In law enforcement, when we had a liquor store shooting where the police would shoot an individual involved in an armed robbery, you didn’t have another one for several days. I do know that. Maybe it’s everybody decided they’re going to sit it out for a while. The cops used to talk about that. Whenever you would get a very bad guy, you would have at least several days of peace. I’m not saying that’s universally the case; it probably isn’t. But as to the individual who did it, I guarantee you Roger Dale Stafford has quite definitely — as has Tim McVeigh – been deterred. Both those guys never again will do what they did, and I think that’s pretty compelling.
E.J. DIONNE: Could I ask another question, because you have been a kind of death penalty reformer? You’ve been willing to take some of these steps on DNA. And I’d like you to respond on both sides of this. Pro death penalty people might say that the death penalty reform movement is really a kind of Trojan Horse for abolitionists and on the other side I think opponents of the death penalty would say if the system is as flawed as so many death penalty reformers say it is, doesn’t the logic of this position lead to repeal, if you could answer kind of both sides of that?
GOV. KEATING: Well, I think there’s probably some real truth in the fact that some people who are reformers want to reform it out of existence. I think that’s very true.
But again I think as a public policy person, any time an issue like a human life issue arises we debate it with good will and with as much intelligence and sensitivity as we can. Just because the motive of some may be different than my motive, I still think is worthy of debating. I’ve learned a lot. I think some of the opposition, E.J., to capital punishment was responsible for moving us as a state in the direction of the DNA initiative, which has been very successful and we have identified several individuals who were wrongfully convicted as a result of DNA testing, and we’re still testing. It’s a very expensive proposition but we are doing it.
Now, on the other hand I don’t know how to answer the second half of your question. I think there is just no limit to the volatility of the debate, and those of us who subject ourselves to the electorate just have to swallow hard and keep rolling.
In my state I’m a curiosity, a Catholic governor in an overwhelmingly non-Catholic state and yet I’m in the battle on occasion on this issue with our archbishop in Oklahoma City and the Bishop in Tulsa. (Laughter.) I kind of hide under the bed when they start firing the big guns. It’s not fun. I mean, it really isn’t fun. I’m waiting to go to mass on Sunday and be denounced from the pulpit. (Laughter.) That hasn’t happened yet, but it’s no fun.
E.J. DIONNE: And, in fact, Jean, if you could give me a couple more, just two more issues I want to deal with?
JEAN BETHKE ELSHTAIN: I’m always happy to yield to my honorable co-chair. (Laughter.)
E.J. DIONNE: I do think it’s an interesting question that if you take Catholic politicians, Republican politicians seem much more responsive to the church’s teaching on abortion than they are on the death penalty. Why is that?
GOV. KEATING: Well – and I was not present for all of the discussion this morning, so I haven’t been able to listen to Cardinal Dulles, whom I greatly admire – I think the church’s position on abortion is far more mature than the church’s position on the capital punishment. I think the pope’s position on capital punishment is one thing; the church’s position is quite something else, and I think the catechism and the historic teachings of the church have been supportive of capital punishment. In rare instances, and as I said, 1/12th of 1 percent, 1/2 of 1 percent of the killings resulting in capital punishment are very rare indeed.
When I went to the Augustinians in middle school and the Jesuits in college, quite truthfully the debate wasn’t really a debate. Everybody assumed capital punishment was fine. That was the discussion in our academic circles among the schools and the scholars that we talked to.
Now, the situation has changed. There’s no question that the church is moving in the direction opposite to where it was not too many years ago. The abortion situation has been pretty well rock solid for a long, long time. The minute Roe v. Wade was decided there was an overnight eruption. When capital punishment was finally legalized by the U.S. Supreme Court, there was not that overnight eruption by the church.
JEAN BETHKE ELSHTAIN: Governor, I would like to ask you a general question and you can apply it as specifically as you want to this issue, about what you think as a governor the appropriate role of religion is in public debate, whether it’s on capital punishment or abortion or a number of other questions. There are some philosophers, political philosophers, who have argued that people with religious convictions should struggle very hard to find some other way to express their views other than in religious language or directly through that conviction. So I’d like to hear your position on that and again on the appropriate role of religious discourse in political life.
GOV. KEATING: Well, we were talking at lunch and I made the comment that both political parties are minority parties today, and I think most people would like to elect people of integrity and vision and courage who are willing to speak their minds, but on the subject of religion you have to have a consensus. If I were to stand up and say, “I’ve got this great idea, my fellow citizens; we’re going to make a flute and a basket and a cobra the official religious symbols of Oklahoma,” I would be quickly impeached. Why? Because that is not a consensus view of what religion should be.
But when you have a huge diverse population with many different cultural and religious backgrounds, you try to pick your way through to find a civic consensus, if you will. We believe, I think, that your property is yours and your life is yours. There is a religious reason for believing that. I mean, those are basic concepts to many of the major religions of the world. We in my state, for example, have some restrictions on abortion but not entirely. Why? Because there is no consensus there. And you try to wind your way through it.
As a political elected official I always say what I think, what I believe, but I honor those that disagree. You have a right in this society to express your views, but that doesn’t mean I don’t have a right to express my view.
In Roger and Hammerstein’s “Oklahoma” there is a line that says, “I don’t say I’m better than anybody else, but I’ll be darned if I’m not just as good.” And that’s kind of a Norman Rockwell painting, that’s basically our society and I think that’s healthy that when you get 51 votes out of a hundred then you can pass something but until then I think you ought to argue your views, express your views, live your values. If people like it, fine; if people don’t like it, fine too. That’s what we enjoy in a pluralistic society.
JEAN BETHKE ELSHTAIN: Let’s express our appreciation to the Honorable Frank Keating, Governor of Oklahoma.
(Applause and End of Luncheon Event.)