[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.
____________________