[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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