Yesterday marked the thirteenth anniversary of one of the more moving judicial opinions of the twentieth century; I remember grabbing a printout off of Usenet and bringing it to my political science professor that morning to basically say, "Holy crap! He finally gets it."
The case was Callins v Collins, an ordinary, routine death penalty case. For all I know, the guy probably did it, and the Supreme Court lacked the required four votes to review the matter. That, however, did not stop Judge Harry Blackmum, a Nixon appointee, from deciding to [allowing his clerks to] release a dissenting opinion venting his frustration with the Court's death penalty jurisprudence, declaring it fundamentally impossible to reconcile the legal demands for fair and consistent sentencing across the board with those for individualized determinations in each case.
What does that mean? Justice Blackmun sets the stage:
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.
Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die. We hope, of course, that the defendant whose life is at risk will be represented by competent counsel--someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant. We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants' rights -- even now, as the prospect of meaningful judicial oversight has diminished. In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.
But even if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy.
And why? Because it is impossible to dole out mercy and compassion in a way consistent with the Constitutional requirements of due process and equal protection:
[D]espite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.
... Experience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death can never be achieved without compromising an equally essential component of fundamental fairness -- individualized sentencing. ...
To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that "degree of respect due the uniqueness of the individual." That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice.
...[I]n the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well. Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.
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 allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails todeliver the fair, consistent, and reliable sentences of death required by the Constitution
Yeah, you might want to keep reading, including footnote 8:
Even the most sophisticated death penalty schemes are unable to prevent human error from condemning the innocent. Innocent persons have been executed, see Bedau & Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 36, 173-179 (1987), perhaps recently, see Herrera v. Collins, supra, and will continue to be executed under our death penalty scheme.
Six weeks later, Justice Blackmun announced his retirement from the bench, and today, every single one of the nine Supreme Court justices accepts the constitutionality of the death penalty. It is to the legislatures that we must look.