[Congressional Record Volume 140, Number 21 (Wednesday, March 2, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 2, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            THE DEATH PENALTY: JUSTICE BLACKMUN'S OPPOSITION

  Mr. HATFIELD. Mr. President, last fall the Senate passed a crime bill 
that included a broad expansion of the death penalty to numerous 
Federal crimes. That was a mistake that I hope is not replicated soon 
by the House of Representatives. Last week, dissenting from the Supreme 
Court's decision to deny review of the scheduled execution of a 
prisoner in Texas, Justice Blackmun eloquently stated many of the 
inherent problems with the death penalty. I ask unanimous consent that 
this opinion be placed in the Record following my remarks, and I urge 
my colleagues to review it carefully.
  (See exhibit 1.)
  Mr. HATFIELD. After many years of struggle with this question, 
Justice Blackmun has come to the conclusion that the death penalty can 
not satisfy the constitutional demands for consistency, fairness, and 
individualized sentencing. Justice Blackmun has seen the death penalty 
applied in an arbitrary and often discriminatory manner. The legal 
barriers making it possible that valid evidence of a prisoner's 
innocence might not be heard provide further reason for his coming to 
the conclusion that the death penalty can not be reconciled with the 
eighth amendment's requirement against cruel and unusual punishment.
  I do not presume to be an expert in constitutional law. And, I have 
disagreed with some important positions that Justice Blackmun has 
taken, including his past stance that the death penalty might be 
imposed if somehow it could be used fairly and consistently. I oppose 
the death penalty because I believe that government-sponsored killing 
in all of its forms is immoral. It serves to further this point when a 
Justice of the Supreme Court, who has seen a vast number of death 
penalty cases over his long career, comes to the final conclusion that 
fallible humans can not fairly apply this punishment, or even be 
certain that they are executing the right person. When human beings 
attempt to take on authority that only our Creator possesses they are 
doomed to failure.
  There being no objection, the opinion was ordered to be printed in 
the Record, as follows:

                               Exhibit 1

[No. 93-7074, Supreme Court of the United States, Petition for Writ of 
Certiorari to the United States Court of Appeals for the Fifth Circuit, 
            February 22, 1994, Justice Blackmun, dissenting]

 Bruce Edwin Callins, Petitioner v. James A. Collins, Director, Texas 
         Department of Criminal Justice, Institutional Division

       On February 23, 1994, as 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. Twenty years have 
     passed since this Court declared that the death penalty must 
     be imposed fairly, and with reasonable consistency, or not at 
     all, see Furman v. Georgia, 408 U.S. 238 (1972), and, despite 
     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. This is not to say that 
     the problems with the death penalty today are identical to 
     those that were present 20 years ago. Rather, the problems 
     that were pursued down one hole with procedural rules and 
     verbal formulas have come to the surface somewhere else, just 
     as virulent and pernicious as they were in their original 
     form. Experience has taught us that the constitutional goal 
     of eliminating arbitrariness and discrimination from the 
     administration of death, see Furman v. Georgia, supra, can 
     never be achieved without compromising an equally essential 
     component of fundamental fairness--individualized sentencing. 
     See Lockett v. Ohio, 438 U.S. 586 (1978).
       It is tempting, when faced with conflicting constitutional 
     commands, to sacrifice one for the other or to assume that an 
     acceptable balance between them already has been struck. In 
     the context of the death penalty, however, such 
     jurisprudential maneuvers are wholly inappropriate. The death 
     penalty must be imposed ``fairly, and with reasonable 
     consistency, or not at all.'' Eddings v. Oklahoma, 455 U.S. 
     104, 112 (1982).
       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.'' Lockett v. 
     Ohio, 438 U.S., at 605 (plurality opinion). 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. Finally, because human error is inevitable, and 
     because our criminal justice system is less than perfect, 
     searching appellate review of death sentences and their 
     underlying convictions is a prerequisite to a constitutional 
     death penalty scheme.
       On their face, these goals of individual fairness, 
     reasonable consistency, and absence of error appear to be 
     attainable: Courts are in the very business of erecting 
     procedural devices from which fair, equitable, and reliable 
     outcomes are presumed to flow. Yet, in 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, see McCleskey v. Kemp, 
     481 U.S. 279, 313, n. 37 (1987), 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.\1\ 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, 
     see, e.g., Arave v. Creech, ____ U.S. ____ (1993), relevant 
     mitigating evidence to be disregarded, see, e.g., Johnson v. 
     Texas, ____ U.S. ____ (1993), and vital judicial review to be 
     blocked, see, e.g., Coleman v. Thompson, 501 U.S. ____ 
     (1991). 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 to deliver 
     the fair, consistent, and reliable sentences of death 
     required by the Constitution.\2\

                                   I

       In 1971, in an opinion which has proved partly prophetic, 
     the second Justice Harlan, writing for the Court, observed:
       ``Those who have come to grips with the hard task of 
     actually attempting to draft means of channeling capital 
     sentencing discretion have confirmed the lesson taught by the 
     history recounted above. To identify before the fact those 
     characteristics of criminal homicides and their perpetrators 
     which call for the death penalty, and to express these 
     characteristics in language which can be fairly understood 
     and applied by the sentencing authority, appear to be tasks 
     which are beyond present human ability. . .  For a court to 
     attempt to catalog the appropriate factors in this elusive 
     area could inhibit rather than expand the scope of 
     consideration, for no list of circumstances would ever be 
     really complete.'' McGautha v. California, 402 U. S. 183, 
     204, 208 (1971).
       In McGautha, the petitioner argued that a statute which 
     left the penalty of death entirely in the jury's discretion, 
     without any standards to govern its imposition, violated the 
     Fourteenth Amendment. Although the Court did not deny that 
     serious risks were associated with a sentencer's unbounded 
     discretion, the Court found no remedy in the Constitution for 
     the inevitable failings of human judgment.
       A year later, the Court reversed its course completely in 
     Furman v. Georgia, 408 U. S. 238 (1972) (per curiam, with 
     each of the nine Justices writing separately). The concurring 
     Justices argued that the glaring inequities in the 
     administration of death, the standardless discretion wielded 
     by judges and juries, and the pervasive racial and economic 
     discrimination, rendered the death penalty, at least as 
     administered, ``cruel and unusual'' within the meaning of the 
     Eighth Amendment. Justice White explained that, out of the 
     hundreds of people convicted of murder every year, only a 
     handful were sent to their deaths, and that there was ``no 
     meaningful basis for distinguishing the few cases in which 
     [the death penalty] is imposed from the many cases in which 
     it is not.'' 408 U. S., at 313. If any discernible basis 
     could be identified for the selection of those few who were 
     chosen to die, it was ``the constitutionally impermissible 
     basis of race.'' Id., at 310 (Stewart, J., concurring).
       I dissented in Furman. Despite my intellectual, moral, and 
     personal objections to the death penalty, I refrained from 
     joining the majority because I found objectionable the 
     Court's abrupt change of position in the single year that had 
     passed since McGautha. While I agreed that the Eighth 
     Amendment's prohibition against cruel and unusual punishments 
     ```may acquire meaning as public opinion becomes enlightened 
     by a humane justice,''' 408 U. S., at 409, quoting Weems v. 
     United States, 217 U. S. 349, 378 (1910), I objected to the 
     ``suddenness of the Court's perception of progress in the 
     human attitude since decisions of only a short while 
     ago.'' 408 U.S., at 410. Four years after Furman was 
     decided, I concurred in the judgment in Gregg v. Georgia, 
     428 U.S. 153 (1976), and its companion cases which upheld 
     death sentences rendered under statutes passed after 
     Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 
     261 (1976), and Jurek v. Texas, 428 U.S. 262, 279 (1976). 
     Cf. Woodson v. North Carolina, 428 U.S. 280, 307 (1976), 
     and Roberts v. Louisiana, 428, U.S. 325, 363 (1976).


                                   A

       There is little doubt now that Furman's essential holding 
     was correct. 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. Eddings v. Oklahoma, 455 U.S., at 112. I 
     never have quarreled with this principle; in my mind, the 
     real meaning of Furman's diverse concurring opinions did not 
     emerge until some years after Furman was decided. See Gregg 
     v. Georgia, 428 U.S., at 189 (opinion of Stewart, Powell, and 
     Stevens, JJ.) (``Furman mandates that where discretion is 
     afforded a sentencing body on a matter so grave as the 
     determination of whether a human life should be taken or 
     spared, that discretion must be suitably directed and limited 
     so as the minimize the risk of wholly arbitrary and 
     capricious action''). Since Gregg, I faithfully have adhered 
     to the Furman holding and have come to believe that it is 
     indispensable to the Court's Eighth Amendment jurisprudence.
       Delivering on the Furman promise, however, has proved to be 
     another matter. Furman aspired to eliminate the vestiges of 
     racism and the effects of poverty in capital sentencing; it 
     deplored the ``wanton'' and ``random'' infliction of death by 
     a government with constitutionally limited power. FUrman 
     demanded that the sentencer's discretion be directed and 
     limited by procedural rules and objective standards in order 
     to minimize the risk of arbitrary and capricious sentences of 
     death.
       In the years following Furman, serious efforts were made to 
     comply with its mandate. State legislatures and appellate 
     courts struggled to provide judges and juries with sensible 
     and objective guidelines for determining who should live and 
     who should die. some States attempted to define who is 
     ``deserving'' of the death penalty through the use of 
     carefully chosen adjectives, reserving the death penalty for 
     those who commit crimes that are ``especially heinous, 
     atrocious, or cruel,'' see Fla. Stat. Sec. 921.141(5)(h) 
     (Supp. 1976), or ``wantonly vile, horrible or inhuman,'' see 
     Ga. Code Ann. Sec. 27-2534.1(b)(7) (1978). Other States 
     enacted mandatory death penalty statutes, reading Furman as 
     an invitation to eliminate sentencer discretion altogether. 
     See, e.g., N.C. Gen. Stat. Sec. 14-17 (Cum. Supp. 1975). But 
     see Woodson v. North Carolina, 428 U.S. 280 (1976) 
     (invalidating mandatory death penalty statutes). Still other 
     States specified aggravating and mitigating factors that were 
     to be considered by the sentencer and weighed against one 
     another in a calculated and rational manner. See, e.g., Ga. 
     Code. Ann. Sec. 17-10-30(c) (1982); cf. Tex. Code Crim. Proc. 
     Ann., Art. 37.071(c)-(e) (Vernon 1981 and Supp. 1989) 
     (identifying ``special issues'' to be considered by the 
     sentencer when determining the appropriate sentence).
       Unfortunately, all this experimentation and ingenuity 
     yielded little of what Furman demanded. It soon became 
     apparent that discretion could not be eliminated from capital 
     sentencing without threatening the fundamental fairness due a 
     defendant when life is at stake. Just as contemporary society 
     was no longer tolerant of the random or discriminatory 
     infliction of the penalty of death, see Furman, supra, 
     evolving standards of decency required due consideration 
     of the uniqueness of each individual defendant when 
     imposing society's ultimate penalty. See Woodson, 428 
     U.S., at 301 (opinion of Stewart, Powell, and Stevens, 
     JJ.) referring to Trop v. Dulles, 356 U.S. 86, 101 (1958) 
     (plurality opinion).
       This development in the American conscience would have 
     presented no constitutional dilemma if fairness to the 
     individual could be achieved without sacrificing the 
     consistency and rationality promised in Furman. But over the 
     past two decades, efforts to balance these competing 
     constitutional commands have been to no avail. Experience has 
     shown that the consistency and rationality promised in Furman 
     are inversely related to the fairness owed the individual 
     when considering a sentence of death. A step toward 
     consistency is a step away from fairness.


                                   B

       There is a heightened need for fairness in the 
     administration of death. This unique level of fairness is 
     born of the appreciation that death truly is different from 
     all other punishments a society inflicts upon its citizens. 
     ``Death, in its finality, differs more from life imprisonment 
     than a 100-year prison term differs from one of only a year 
     or two.'' Woodson, 428 U.S., at 305 (opinion of Stewart, 
     Powell, and Stevens, JJ.). Because of the qualitative 
     difference of the death penalty, ``there is a corresponding 
     difference in the need for reliability in the determination 
     that death is the appropriate punishment in a specific 
     case.'' Ibid. In Woodson, a decision striking down mandatory 
     death penalty statutes as unconstitutional, a plurality of 
     the Court explained: ``A process that accords no significance 
     to relevant facets of the character and record of the 
     individual offender or the circumstances of the particular 
     offense excludes from consideration in fixing the ultimate 
     punishment of death the possibility of compassionate or 
     mitigating factors stemming from the diverse frailties of 
     humankind.'' Id., at 304.
       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.'' Ibid. Thus, although 
     individualized sentencing in capital cases was not considered 
     essential at the time the Constitution was adopted, Woodson 
     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. Id., at 301.
       The Court elaborated on the principle of individualized 
     sentencing in Lockett v. Ohio, 438 U.S. 586 (1978). In that 
     case, a plurality acknowledged that strict restraints on 
     sentencer discretion are necessary to achieve the consistency 
     and rationality promised in Furman, but held that, in the 
     end, the sentencer must retain unbridled discretion to afford 
     mercy. Any process or procedure that prevents the sentencer 
     from considering ``as a mitigating factor, any aspect of a 
     defendant's character or record and any circumstances of the 
     offense that the defendant proffers as a basis for a sentence 
     less than death,'' creates the constitutionally intolerable 
     risk that ``the death penalty will be imposed in spite of 
     factors which may call for a less severe penalty.'' Id., at 
     604-605 (emphasis in original). See also Sumner v. Shuman, 
     483 U.S. 66 (1987) (invalidating a mandatory death penalty 
     statute reserving the death penalty for life-term inmates 
     convicted of murder). The Court's duty under the Constitution 
     therefore is to ``develop a system of capital punishment at 
     once consistent and principled but also humane and 
     sensible to the uniqueness of the individual.'' Eddings v. 
     Oklahoma, 455 U.S., at 110.


                                   c

       I believe the Woodson-Lockett line of cases to be 
     fundamentally sound and rooted in American standards of 
     decency that have evolved over time. The notion of 
     prohibiting a sentencer from exercising its discretion ``to 
     dispense mercy on the basis of factors too intangible to 
     write into a statute,'' Gregg, 428 U.S., at 222 (White, J., 
     concurring), is offensive to our sense of fundamental 
     fairness and respect for the uniqueness of the individual. In 
     California v. Brown, 479 U.S. 538 (1987), I said in dissent:
       ``The sentencer's ability to respond with mercy towards a 
     defendant has always struck me as a particularly valuable 
     aspect of the capital sentencing procedure. . . . [W]e adhere 
     so strongly to our belief that a sentencer should have the 
     opportunity to spare a capital defendant's life on account of 
     compassion for the individual because, recognizing that the 
     capital sentencing decision must be made in the context of 
     `contemporary values,' Gregg v. Georgia, 428 U.S., at 181 
     (opinion of Stewart, Powell, and Stevens, JJ.), we see in the 
     sentencer's expression of mercy a distinctive feature of our 
     society that we deeply value.'' Id., at 562-563.
       Yet, as several Members of the Court have recognized, there 
     is real ``tension'' between the need for fairness to the 
     individual and the consistency promised in Furman. See 
     Franklin v. Lynaugh, 487 U.S. 164, 182 (1988) (plurality 
     opinion); California v. Brown, 479 U.S., at 544 (O'Connor, 
     J., concurring); McCleskey v. Kemp, 481 U.S., at 363 
     (Blackmun, J., dissenting); Graham v. Collins, ____ U.S. 
     ____, ____ (1993) (Thomas, J., concurring). 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.''' Gregg, 428 
     U.S., at 198 (opinion of Stewart, Powell, and Stevens, JJ.), 
     quoting Coley v. State, 231 Ga. 829, 834, 204 S.E. 2d 612, 
     615 (1974). 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.'' California v. Brown, 479 U.S. 538, 544 (1987) 
     (O'Connor, J., concurring). 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.
       This dilemma was laid bare in Penry v. Lynaugh, 492 U.S. 
     302 (1989). The defendant in Penry challenged the Texas death 
     penalty statute, arguing that it failed to allow the 
     sentencing jury to give full mitigating effect to his 
     evidence of mental retardation and history of child abuse. 
     The Texas statute required the jury, during the penalty 
     phase, to answer three ``special issues''; if the jury 
     unanimously answered ``yes'' to each issue, the trial court 
     was obligated to sentence the defendant to death. Tex. Code 
     Crim. Proc. Ann., Art. 37.071(c)-(e) (Vernon 1981 and Supp. 
     1989). Only one of the three issues--whether the defendant 
     posed a ``continuing threat to society''--was related to the 
     evidence Penry offered in mitigation. But Penry's evidence of 
     mental retardation and child abuse was a two-edged sword as 
     it related to that special issue: ``it diminish[ed] his 
     blameworthiness for his crime even as it indicate[d] 
     that there [was] a probability that he [would] be 
     dangerous in the future.'' 492 U.S., at 324. The Court 
     therefore reversed Penry's death sentence, explaining that 
     a reasonable juror could have believed that the statute 
     prohibited a sentence less than death based upon his 
     mitigating evidence. Id., at 326.
       After Penry, the paradox underlying the Court's post-Furman 
     jurisprudence was undeniable. Texas had complied with Furman 
     by severely limiting the sentencer's discretion, but those 
     very limitations rendered Penry's death sentence 
     unconstitutional.


                                   D

       The theory underlying Penry and Lockett is that an 
     appropriate balance can be struck between the Furman promise 
     of consistency and the Lockett requirement of individualized 
     sentencing if the death penalty is conceptualized as 
     consisting of two distinct stages.\3\ In the first stage of 
     capital sentencing, the demands of Furman are met by 
     ``narrowing'' the class of death-eligible offenders according 
     to objective, fact-bound characteristics of the defendant or 
     the circumstances of the offense. Once the pool of death-
     eligible defendants has been reduced, the sentencer retains 
     the discretion to consider whatever relevant mitigating 
     evidence the defendant chooses to offer. See Graham v. 
     Collins, ____ U.S., at ____ (Stevens, J., dissenting) (slip 
     op. 3) (arguing that providing full discretion to the 
     sentencer is not inconsistent with Furman and may actually 
     help to protect against arbitrary and capricious sentencing).
       Over time, I have come to conclude that even this approach 
     is unacceptable: It simply reduces, rather than eliminates, 
     the number of people subject to arbitrary sentencing.\4\ It 
     is the decision to sentence a defendant to death--not merely 
     the decision to make a defendant eligible for death--that may 
     not be arbitrary. 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.


                                   E

       The arbitrariness inherent in the sentencer's discretion to 
     afford mercy is exacerbated 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, Furman's promise still will 
     go unfulfilled so long as the sentencer is free to exercise 
     unbridled discretion within the smaller group and thereby to 
     discriminate. ```The power to be lenient [also] is the power 
     to discriminate.''' McCleskey v. Kemp, 481 U.S., at 312, 
     quoting K. Davis, Discretionary Justice 170 (1973).
       A renowned example of racism infecting a capital-sentencing 
     scheme is documented in McCleskey v. Kemp, 481 U.S. 279 
     (1987). Warren McCleskey, an African-American, argued that 
     the Georgia capital-sentencing scheme was administered in a 
     racially discriminatory manner, in violation of the Eighth 
     and Fourteenth Amendments. In support of his claim, he 
     proffered a highly reliable statistical study (the Baldus 
     study) which indicated that, ``after taking into account some 
     230 nonracial factors that might legitimately influence a 
     sentencer, the jury more likely than not would have spared 
     McCleskey's life had his victim been black.'' 481 U.S., at 
     325 (emphasis in original) (Brennan, J., dissenting). The 
     Baldus study further demonstrated that blacks who kill whites 
     are sentenced to death ``at nearly 22 times the rate of 
     blacks who kill blacks, and more than 7 times the rate of 
     whites who kill blacks.'' Id., at 327 (emphasis in original).
       Despite this staggering evidence of racial prejudice 
     infecting Georgia's capital-sentencing scheme, the majority 
     turned its back on McCleskey's claims, apparently troubled by 
     the fact that Georgia had instituted more procedural and 
     substantive safeguards than most other States since Furman, 
     but was still unable to stamp out the virus of racism. Faced 
     with the apparent failure of traditional legal devices to 
     cure the evils identified in Furman, the majority wondered 
     aloud whether the consistency and rationality demanded by the 
     dissent could ever be achieved without sacrificing the 
     discretion which is essential to fair treatment of individual 
     defendants:
       ``[I]t is difficult to imagine guidelines that would 
     produce the predictability sought by the dissent without 
     sacrificing the discretion essential to a humane and fair 
     system of criminal justice . . . . The dissent repeatedly 
     emphasizes the need for `a uniquely high degree of 
     rationality in imposing the death penalty' . . . . Again, no 
     suggestion is made as to how greater `rationality' could be 
     achieved under any type of statute that authorizes capital 
     punishment . . . . Given these safeguards already inherent in 
     the imposition and review of capital sentences, the dissent's 
     call for greater rationality is no less than a claim that a 
     capital punishment system cannot be administered in accord 
     with the Constitution.'' Id. at 314-315, n. 37.
       I joined most of Justice Brennan's significant dissent 
     which expounded McCleskey's Eighth Amendment claim, and I 
     wrote separately, id., at 345, to explain that McCleskey also 
     had a solid equal protection argument under the Fourteenth 
     Amendment. I still adhere to the views set forth in both 
     dissents, and, as far as I know, there has been no serious 
     effort to impeach the Baldus study. Nor, for that matter, 
     have proponents of capital punishment provided any reason to 
     believe that the findings of that study are unique to 
     Georgia.
       The fact that we may not be capable of devising procedural 
     or substantive rules to prevent the more subtle and often 
     unconscious forms of racism from creeping into the system 
     does not justify the wholesale abandonment of the Furman 
     promise. To the contrary, where a morally irrelevant--indeed, 
     a repugnant--consideration plays a major role in the 
     determination of who shall live and who shall die, it 
     suggests that the continued enforcement of the death penalty 
     in light of its clear and admitted defects is deserving of a 
     ``sober second thought.'' Justice Brennan explained:
       ``Those whom we would banish from society or from the human 
     community itself often speak in too faint a voice to be heard 
     above society's demand for punishment. It is the particular 
     role of courts to hear these voices, for the Constitution 
     declares that the majoritarian chorus may not alone 
     dictate the conditions of social life. The Court thus 
     fulfills, rather than disrupts, the scheme of separation 
     of powers by closely scrutinizing the imposition of the 
     death penalty, for no decision of a society is more 
     deserving of the `sober second thought.' Stone, The Common 
     Law in the United States, 50 Harv. L. Rev. 4, 25 (1936).'' 
     Id., at 343.


                                   f

       In the years since McCleskey, I have come to wonder whether 
     there was truth in the majority's suggestion that 
     discrimination and arbitrariness could not be purged from the 
     administration of capital punishment without sacrificing the 
     equally essential component of fairness--individualized 
     sentencing. Viewed in this way, the consistency promised in 
     Furman and the fairness to the individual demanded in Lockett 
     are not only inversely related, but irreconcilable in the 
     context of capital punishment. Any statute or procedure that 
     could effectively eliminate arbitrariness from the 
     administration of death would also restrict the sentencer's 
     discretion to such an extent that the sentencer would be 
     unable to give full consideration to the unique 
     characteristics of each defendant and the circumstances of 
     the offense. By the same token, any statute or procedure that 
     would provide the sentencer with sufficient discretion to 
     consider fully and act upon the unique circumstances of each 
     defendant would ``thro[w] open the back door to arbitrary and 
     irrational sentencing.'' Graham v. Collins, ____ U.S., at 
     ____ (Thomas, J., concurring) (slip op. 17). All efforts to 
     strike an appropriate balance between these conflicting 
     constitutional commands are futile because there is a 
     heightened need for both in the administration of death.
       But even if the constitutional requirements of consistency 
     and fairness are theoretically reconcilable in the context of 
     capital punishment, it is clear that this Court is not 
     prepared to meet the challenge. In apparent frustration over 
     its inability to strike an appropriate balance between the 
     Furman promise of consistency and the Lockett requirement of 
     individualized sentencing, the Court has retreated from the 
     field,\5\ allowing relevant mitigating evidence to be 
     discarded,\6\ vague aggravating circumstances to be 
     employed,\7\ and providing no indication that the problem of 
     race in the administration of death will ever be addressed. 
     In fact some members of the Court openly have acknowledged a 
     willingness simply to pick one of the competing 
     constitutional commands and sacrifice the other. See Graham, 
     ____ U.S., at ____ (Thomas, J., concurring) (calling for the 
     reversal of Penry); Walton v. Arizona, 497 U.S. 639, 673 
     (1990) (Scalia, J., concurring in part and concurring in the 
     judgment) (announcing that he will no longer enforce the 
     requirement of individualized sentencing, and reasoning that 
     either Furman or Lockett is wrong and a choice must be made 
     between the two). These developments are troubling, as they 
     ensure that death will continue to be meted out in this 
     country arbitrarily and discriminatorily, and without that 
     ``degree of respect due the uniqueness of the individual.'' 
     Lockett, 438 U.S., at 605. In my view, the proper course when 
     faced with irreconcilable constitutional commands is not to 
     ignore one or the other, nor to pretend that the dilemma does 
     not exist, but to admit the futility of the effort to 
     harmonize them. This means accepting the fact that the death 
     penalty cannot be administered in accord with our 
     Constitution.

                                   II

       My belief that this Court would not enforce the death 
     penalty (even if it could) in accordance with the 
     Constitution is buttressed by the Court's ``obvious eagerness 
     to do away with any restriction on the States' power to 
     execute whomever and however they please.'' Herrera, ____ 
     U.S., at ____ (Blackmun, J., dissenting) (slip op. 18). I 
     have explained at length on numerous occasions that my 
     willingness to enforce the capital punishment statutes 
     enacted by the States and the Federal Government, 
     ``notwithstanding my own deep moral reservations . . . has 
     always rested on an understanding that certain procedural 
     safeguards, chief among them the federal judiciary's power 
     to reach and correct claims of constitutional error on 
     federal habeas review, would ensure that death sentences 
     are fairly imposed.'' Sawyer v. Whitley,____ U.S. ____ , 
     ____ (1992) (Blackmun, J., concurring in the judgment) 
     (slip op. 8-9). See also Herrera v. Collins, ____ U.S., at 
     ____ (Blackmun, J., dissenting). In recent years, I have 
     grown increasingly skeptical that ``the death penalty 
     really can be imposed fairly and in accordance with the 
     requirements of the Eighth Amendment'' given the now 
     limited ability of the federal courts to remedy 
     constitutional errors. Sawyer, ____ U.S., at ____ 
     (Blackmun, J., concurring in the judgment) (slip op. 1).
       Federal courts are required by statute to entertain 
     petitions from state prisoners who allege that they are held 
     ``in violation of the Constitution or the treaties of the 
     United States.'' 28 U.S.C. Sec. 2254(a). Serious review of 
     these claims helps to ensure that government does not secure 
     the penalty of death by depriving a defendant of his or her 
     constitutional rights. At the time I voted with the majority 
     to uphold the constitutionality of the death penalty in Gregg 
     v. Georgia, 428 U.S. 153, 227 (1976), federal courts 
     possessed much broader authority than they do today to 
     address claims of constitutional error on habeas review. In 
     1976, there were few procedural barriers to the federal 
     judiciary's review of a State's capital sentencing scheme, or 
     the fairness and reliability of a State's decision to impose 
     death in a particular case. Since then, however, the Court 
     has ``erected unprecedented and unwarranted barriers'' to the 
     federal judiciary's review of the constitutional claims of 
     capital defendants. Sawyer, ____ U.S., at ____ (Blackmun, J., 
     concurring in the judgment) (slip op. 2). See, e.g., Herrera 
     v. Collins, supra; Coleman v. Thompson, 501 U.S. ____ (1991); 
     McCleskey v. Zant, 499 U.S. ____ (1991); Keeney v. Tamayo-
     Reyes, ____ U.S. ____ (1992) (overruling Townsend v. Sain, 
     372 U.S. 293 (1963), in part); Teague v. Lane, 489 U.S. 288 
     (1989); Butler v. McKellar, 494 U.S. 407 (1990).
       The Court's refusal last term to afford Leonel Torres 
     Herrera an evidentiary hearing, despite his colorable showing 
     of actual innocence, demonstrates just how far afield the 
     Court has strayed from its statutorily and constitutionally 
     imposed obligations. See Herrera v. Collins, supra. In 
     Herrera, only a bare majority of this Court could bring 
     itself to state forthrightly that the execution of an 
     actually innocent person violates the Eighth Amendment. This 
     concession was made only in the course of erecting nearly 
     insurmountable barriers to a defendant's ability to get a 
     hearing on a claim of actual innocence. Ibid. Certainly there 
     will be individuals who are actually innocent who will be 
     unable to make a better showing than what was made by Herrera 
     without the benefit of an evidentiary hearing.\8\ The Court 
     is unmoved by the dilemma, however; it prefers ``finality'' 
     in death sentences to reliable determinations of a capital 
     defendant's guilt. Because I no longer can state with any 
     confidence that this Court is able to reconcile the Eighth 
     Amendment's competing constitutional commands, or that the 
     federal judiciary will provide meaningful oversight to the 
     state courts as they exercise their authority to inflict the 
     penalty of death, I believe that the death penalty, as 
     currently administered, is unconstitutional.

                                  III

       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.'' Godfrey v. Georgia, 446 U.S. S. 420, 442 (1980) 
     (Marshall, J., concurring in the judgment). 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.


                               footnotes

     \1\As a member of the United States Court of Appeals, I voted 
     to enforce the death penalty, even as I stated publicly that 
     I doubted its moral, social, and constitutional legitimacy. 
     See Feguer v. United States, 302 F. 2d 214 (CA8), cert. 
     denied, 371 U. S. 872 (1962); Pope v. United States, 372 F. 
     2d 710 (CA8 1967) (en banc), vacated and remanded, 392 U. S. 
     651 (1968); Maxwell v. Bishop, 398 F. 2d 138, 153-154 (CA8 
     1968), vacated and remanded, 398 U. S. 262 (1970). See Furman 
     v. Georgia, 408 U. S. 238, 405 (1972).
     \2\Because I conclude that no sentence of death may be 
     constitutionally imposed under our death penalty scheme, I do 
     not address Callins' individual claims of error. I note, 
     though, that the Court has stripped ``state prisoners of 
     virtually any meaningful federal review of the 
     constitutionality of their incarceration.'' Butler v. 
     McKellar, 494 U. S. 407, 417 (1990) (Brennan, J., dissenting) 
     (emphasis in original). Even if Callins had a legitimate 
     claim of constitutional error, this Court would be deaf to it 
     on federal habeas unless ``the state court's rejection of the 
     constitutional challenge was so clearly invalid under then-
     prevailing legal standards that the decision could not be 
     defended by any reasonable jurist.'' Id., at 417-418 
     (emphasis in original). That a capital defendant facing 
     imminent execution is required to meet such a standard before 
     the Court will remedy constitutional violations is 
     indefensible.
     \3\See Sundby, The Lockett Paradox: Reconciling Guided 
     Discretion and Unguided Mitigation in Capital Sentencing, 38 
     UCLA L. Rev. 1147, 1162 (1991).
     \4\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. S. Gillers, Deciding Who 
     Dies, 129 U. Pa. L. Rev. 1, 27-28 (1980) (arguing that the 
     inherent arbitrariness of the death penalty is only magnified 
     by post-Furman statutes that allow the jury to choose among 
     similarly situated defendants).
     \5\See Clemons v. Mississippi, 494 U. S. 738 (1990) 
     (concluding that appellate courts may engage in a reweighing 
     of aggravating and mitigating circumstances in order to 
     ``cure'' error in capital sentencing); Blystone v. 
     Pennsylvania, 494 U. S. 310 (1990) (upholding a death penalty 
     statute mandating death where aggravating, but no mitigating, 
     circumstances are present, thus divesting the jury of its 
     ability to make an individualized determination that death is 
     the appropriate punishment in a particular case).
     \6\See Johnson v. Texas, ____ U. S. ____ (1993) (affirming 
     death sentence even though the jurors were not allowed to 
     give full mitigating effect to the defendant's youth under 
     the Texas death penalty statute); Graham v. Collins, ____ U. 
     S. ____ (1993). See also Saffle v. Parks, 494 U. S. 484 
     (1990) (upholding death sentence where jurors were instructed 
     to avoid ``any influence of sympathy,'' because the claim was 
     raised on federal habeas and a ruling for the petitioner 
     would constitute a ``new rule'' of constitutional law); Boyde 
     v. California, 494 U. S. 370 (1990) (upholding death sentence 
     where jurors reasonably may have believed that they could not 
     consider the defendant's mitigating evidence regarding his 
     character and background); Walton v. Arizona, 497 U.S. 639 
     (1990) (affirming placement upon the defendant of the burden 
     to establish mitigating circumstances sufficient to call for 
     leniency).
     The Court has also refused to hold the death penalty 
     unconstitutional per se for juveniles, see Stanford v. 
     Kentucky, 492 U. S. 361 (1989), and the mentally retarded, 
     see Penry v. Lynaugh, 492 U. S. 302 (1989).
     \7\See Arave v. Creech, ____ U. S. ____ (1993) (holding that 
     an Idaho statute, as interpreted by the Idaho Supreme Court, 
     which authorizes the death penalty for those murderers who 
     have displayed ``utter disregard for human life,'' genuinely 
     narrows the class of death-eligible defendants); Lewis v. 
     Jeffers, 497 U. S. 764 (1990) (affirming lenient standard for 
     the review of the constitutional adequacy of aggravating 
     circumstances).
     \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.

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