[Congressional Record Volume 140, Number 19 (Monday, February 28, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: February 28, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
          JUSTICE BLACKMUN'S REPUDIATION OF THE DEATH PENALTY

  Mr. DURENBERGER. Mr. President, one of the Supreme Court's most 
distinguished and respected justices--and a native son of my home State 
of Minnesota--recently came to a conclusion regarding capital 
punishment that should make policymakers take notice. Justice Harry 
Blackmun abandoned his past ratification of the death penalty on the 
Court. He concluded that the inherent unfairness of the death penalty--
especially toward poor and minority defendants--means that it can never 
constitutionally be applied.
  Justice Blackmun's views do not command a majority on the Court, and 
it is unlikely that they will in the near future. But the 
thoughtfulness of his reasoning should make legislators less hasty to 
create new offenses eligible for the death penalty, as they have been 
doing on crime legislation currently before Congress. The crime bill 
passed by the Senate at the end of last year would impose the death 
penalty for over 50 new offenses.
  Crime is the No. 1 issue on people's minds, according to recent 
polls, and rightly so. The problem of crime and violence has escalated 
into a public health crisis.
  People deserve to be safe in their homes and communities. Kids 
deserve a chance to grow up. But they do not deserve to be told by 
Congress that the solution to crime lies in shrill cries for the death 
penalty.
  There is simply no evidence that the death penalty is a deterrent to 
crime. In fact, States which have no death penalty have statistically 
lower murder rates than States with the death penalty. And ironically, 
it costs more in our system to execute a criminal than it does to 
incarcerate a felon for life. Add to these practical concerns the issue 
of unfairness articulated by Justice Blackmun, and you have some very 
powerful arguments against capital punishment.
  The expansion of the death penalty by Congress may be an effective 
public relations strategy, but it is not effective crime policy. And as 
Justice Blackmun has pointed out, it is an abomination in a Nation that 
has dedicated itself to justice and fairness. America deserves better.
  Mr. President, I ask unanimous consent that an editorial from the 
Minneapolis Star-Tribune on this topic be entered in the Record at the 
conclusion of my remarks.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

           [From the Minneapolis Star-Tribune, Feb. 24, 1994]

      Blackmun's Break--He Rejects Court Embrace of Death Penalty

       Occasionally a Minnesotan does something so brilliant or 
     kind that even in late February, you're proud to hail from 
     the Land of Snow, Ice and Nice. Count among those moments of 
     pride U.S. Supreme Court Justice Harry Blackmun's soliloquy 
     on the death penalty.
       ``From this day forward, I no longer shall tinker with the 
     machinery of death;'' Blackmun wrote. ``Rather than continue 
     to coddle the Court's delusion that the desired level of 
     fairness has been achieved .  .  . I feel morally and 
     intellectually obligated simply to concede that the death 
     penalty experiment has failed.''
       As Blackmun acknowledged, he did not come to this position 
     easily. ``For more than 20 years I have endeavored .  .  . to 
     develop procedural and substantive rules that would lend more 
     than the mere appearance of fairness to the death penalty 
     endeavor.''
       Those efforts were futile: ``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.'' And the U.S. Constitution 
     provides that if the death penalty ``cannot be administered 
     consistently and rationally, it may not be administered at 
     all.''
       Blackmun focuses, as he must, on constitutional arguments, 
     and concludes that no amount of tinkering can rid the death 
     penalty of inherent unfairnesses in its application, or 
     relieve its bias against impoverished and minority 
     defendants. Absent that possibility of perfection, Blackmun 
     concludes, the death penalty is clearly unconstitutional. He 
     makes a powerful case.
       But by his use of quotation marks in asking which 
     defendants ``deserve'' to die, Blackmun also suggests he's 
     uncomfortable with the larger moral question, which is 
     whether any human being has the right to decide that another 
     deserves to die. The answer to that question should be an 
     unqualified ``No,'' from which flows the most basic argument 
     against capital punishment; that even if it were possible to 
     administer with absolute fairness and consistency, and thus 
     could pass constitutional muster, it would remain a moral 
     abomination. It can no more reasonably claim a respectable 
     place in American Life than the heinous crimes for which it 
     is imposed.
       Blackmun concludes by saying he is optimistic that the 
     Supreme Court eventually will conclude that 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.''
       If the court's embrace of death lessens everyone, this 
     dissent has an opposite and wonderfully curative effect. Well 
     done, Justice Blackmun.

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