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Last Wishes

Since the death of Justice Harry A.

Blackmun last Thursday, thousands of words have been written about him, most of them rightly focused on Roe v. Wade , the historic abortion decision that he wrote and then vigorously defended until his retirement in 1994. During his 24-year tenure on the Supreme Court, Blackmun made other important contributions, championing the rights of minorities, children and the poor, and eloquently forwarding his positions on politically hot issues such as affirmative action and gay rights. And then there was his struggle with capital punishment.

Early on in his career on the court, Blackmun voted to uphold the death-penalty laws that became the foundation for capital punishment as it exists today. But gradually, Blackmun came to the conclusion that the death penalty could never be fairly implemented, and therefore should not exist at all.

Blackmun spelled out his position in late February 1994, less than two months before his retirement, in a 7,000-word dissent from the court’s refusal to hear Callins v. Collins, the case of a Texas man who was sentenced to death after being convicted of shooting to death a bar patron during a robbery. Blackmun’s opinion was a lonely one — it came after the retirements of Justices William J. Brennan Jr. and Thurgood Marshall, both of whom opposed the death penalty, and no other sitting justice joined him. Excerpts from that opinion follow; the quotes indicate Blackmun’s references to prior Supreme Court rulings.

From this day forward, I no longer

shall tinker with the machinery of death. For more than 20 years, I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death-penalty endeavor.

Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death-penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative.

It is not simply that this Court has al-lowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded and vital judicial review to be blocked. The problem is that the inevitabil-ity of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution . . .

Although most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it may not be administered at all . . .

While the risk of mistake in the determination of the appropriate penalty may be tolerated in other areas of the criminal law, "in capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."

Thus, although individualized sentencing in capital cases was not considered essential at the time the Constitution was adopted, [a previous court decision] recognized that American standards of decency could no longer tolerate a capital sentencing process that failed to afford a defendant individualized consideration in the determination whether he or she should live or die . . .

Yet, as several Members of the Court have recognized, there is real "tension" between the need for fairness to the individual and . . . consistency.

On the one hand, discretion in capital sentencing must be "‘controlled by clear and objective standards so as to produce non-discriminatory [and reasoned] application.’"

On the other hand, the Constitution also requires that the sentencer be able to consider "any relevant mitigating evidence regarding the defendant’s character or background, and the circumstances of the particular offense."

The power to consider mitigating evidence that would warrant a sentence less than death is meaningless unless the sentencer has the discretion and authority to dispense mercy based on that evidence.

Thus, the Constitution, by requiring a heightened degree of fairness to the individual, and also a greater degree of equality and rationality in the administration of death, demands sentencer discretion that is at once generously expanded and severely restricted . . .

While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught otherwise. It seems that the decision whether a human being should live or die is so inherently subjective — rife with all of life’s understandings, experiences, prejudices and passions — that it inevitably defies the rationality and consistency required by the Constitution.

The narrowing of death-eligible defendants into a smaller subgroup coupled with the unbridled discretion to pick among them arguably emphasizes rather than ameliorates the inherent arbitrariness of the death penalty.

The arbitrariness inherent in the sentencer’s discretion to afford mercy is exacer-bated by the problem of race. Even under the most sophisticated death-penalty statutes, race continues to play a major role in determining who shall live and who shall die.

Perhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to objective standards. No matter how narrowly the pool of death-eligible defendants is drawn according to objective standards, [the promise of objectivity] will go unfulfilled so long as the sentencer is free to exercise unbridled discretion within the smaller group and thereby to discriminate. "‘[T]he power to be lenient [also] is the power to discriminate.’"

Even the most sophisticated death-penalty schemes are unable to prevent human error from condemning the innocent. Innocent persons have been executed and will continue to be executed under our death-penalty scheme.

Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness and reliability in a capital sentencing scheme. I am not optimistic that such a day will come.

I am more optimistic, though, that this Court eventually will conclude that the effort to eliminate arbitrariness while preserving fairness "in the infliction of [death] is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether."

I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.


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