[Congressional Record Volume 140, Number 26 (Thursday, March 10, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 10, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
       SUPPORT FOR JUSTICE HARRY BLACKMUN'S DEATH PENALTY OPINION

                                 ______


                          HON. BRUCE F. VENTO

                              of minnesota

                    in the house of representatives

                        Thursday, March 10, 1994

  Mr. VENTO. Mr. Speaker, recently Supreme Court Justice Harry 
Blackmun, one of this Nation's foremost judicial experts, made a 
monumental shift in his position on the death penalty. For more than 20 
years, Justice Blackmun, along with numerous members of the Court, has 
attempted to justify the acceptability and the constitutionality of the 
death penalty. Now, however, Justice Blackmun has reversed his opinion, 
recognizing that there are numerous inherent problems with this system 
of punishment.
  In his own words, Justice Blackmun asked himself ``[t]he basic 
question--Does the system accurately and consistently determine which 
defendants `deserve' to die?'' His answer, and one that I have long 
been in agreement with, is no, the system cannot adequately make such a 
determination. With the lack of consistency in which the death penalty 
is enforced, and the inevitability of human error in courts' decisions, 
Justice Blackmun determined that he can no longer support this 
``machinery of death.'' I applaud Justice Blackmun's decision and 
encourage others to follow his lead.
  Since the Supreme Court lifted the ban on the death penalty in 1976, 
there have been countless cases which put into question the 
impartiality and constitutionality of this punishment. Statistics 
consistently show that the death penalty is disproportionately used 
against people of color and members of low-income communities. In 
addition, statistics also show that the 36 States which utilize the 
death penalty, generally have higher murder rates than the 14 States 
which have not chosen to use the death penalty. These types of numbers 
add little credence to the argument that the death penalty is a 
deterrent to violent crime.
  Justice Blackmun, who grew up in St. Paul, MN, the district which I 
now represent, has helped turn the corner for this Nation's thinking on 
the death penalty. I would like to submit into the Record the following 
articles which further explain Justice Blackmun's decision to reverse 
his stance. This is an encouraging sign for our Supreme Court, our 
judicial system, and the United States of America.

           [From the Saint Paul Pioneer Press, Feb. 27, 1994]

  Supreme Court Justice Harry Blackmun Weighs the Evidence--``No More 
                            Death Penalty''

                           (By Steven Thomma)

       When Supreme Court Justice Harry Blackmun announced last 
     week he would no longer support the death penalty, he echoed 
     the sentiment of his home state and a resolute handful of 
     others: It doesn't work.
       Together, they stand against a powerful current of popular 
     American thought. Fearful of crime, a majority of Americans 
     want murderers executed. A majority of the states--36--oblige 
     them.
       Since the Supreme Court lifted its four-year-ban on the 
     death penalty in 1976--with Blackmun agreeing--14 states have 
     resisted increasing pressure to kill killers. Most of the 
     holdouts are in the Midwest and Northeast.
       The opponents make a strong case that it doesn't stop 
     crime. Consider Blackmun's home state of Minnesota. It does 
     not execute criminals, yet has one of the lowest murder rates 
     in the nation. Texas, which executes more people than any 
     other state, has one of the highest murder rates. Despite the 
     seeming assurance of the death penalty, citizens are nearly 
     four times as likely to be murdered in Texas than in 
     Minnesota.
       ``It isn't working,'' said Richard Deiter, director of the 
     Death Penalty Information Center.
       ``Look at the murder rates. It is generally higher in 
     states that have the death penalty than in those that don't 
     have it,'' Deiter said.
       Nationally, a person is more likely to be murdered in a 
     state that has the death penalty than in one that does not, 
     according to the information center's look at federal 
     statistics on the subject.
       The average murder rate in states without the death penalty 
     in 1992 was 4.9 murders for every 100,000 residents. The 
     average in states with the death penalty: 7.8 murders for 
     every 100,000 residents.
       Said FBI Director Louis Freeh: ``I think the deterrent 
     effect is probably minimal.''
       Even many supporters contend the death penalty prevents 
     only a small number of crimes. Of course, they rush to add 
     that it is worth executing convicts if it prevents even a few 
     murders.
       ``I think it is a deterrent, though we may not be able to 
     prove it,'' said Wisconsin state Sen. Alan Lasee, a 
     Republican pushing to reinstate the death penalty in his 
     state after 141 years.
       ``Would the murders go down in Wisconsin? I don't know. . . 
     . But it would certainly send a strong signal to the criminal 
     element that the citizens of Wisconsin are fed up.''
       ``The overwhelming majority of murders are not going to be 
     deterred,'' said Tony Bouza, the former Minneapolis police 
     chief who is now running for governor of Minnesota.
       However, he argues that the death penalty will make some 
     would-be murderers stop and think.
       ``Whenever the human animal sets out to calculate, you want 
     to set important negatives to deter. Human behavior is 
     controllable through negative and positive reinforcement,'' 
     said Bouza.
       One thing is certain, Bouza adds: ``It deters the 
     executed.''
       Though Lasee and Bouza reflect majority opinion, they are 
     in hostile territory.
       Lasee failed last year to get a death penalty proposal out 
     of the Wisconsin Legislature. This year, he narrowed the 
     focus to executing people who kill children in the course of 
     a sexual assault.
       Still, he is two votes short of winning Senate approval for 
     his plan to send the issue to the voters in November.
       Bouza concedes that he would not aggressively seek re-
     enactment of the death penalty from the Minnesota Legislature 
     which last year easily shot down another death penalty 
     proposal.
                                  ____


       No Sentence of Death May Be Constitutionally Imposed . . .

       Following are excerpts from Justice Harry Blackmun's 
     opinion dissenting from the Supreme Court's order denying 
     review in a Texas death penalty case. The order, Callins vs. 
     Collins, No. 93-7054, was unsigned and was issued without an 
     opinion.
       On Feb. 23, 1994, at approximately 1 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 vs. Georgia, 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 . . . can 
     never be achieved without compromising an equally essential 
     component of fundamental fairness: individualized sentencing. 
     (See Lockett vs. Ohio, 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 vs. Oklahoma, 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. . . .'' 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 virtuallay conceded that both fairness and 
     rationality cannot be achieved in the administration of the 
     death penalty (McCleskey vs. Kemp, 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. . . .
       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. . 
     . . 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. . . .
       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. . . .
       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,'' or ``wantonly 
     vile, horrible or inhuman.'' Other States enacted mandatory 
     death penalty statutes, reading Furman as an invitation to 
     eliminate sentencer discretion altogether.
       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 . . . evolving standards 
     of decency required due consideration of the uniqueness of 
     each individual defendant when imposing society's ultimate 
     penalty.
       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. . . .
       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. . . .
       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 statue 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 statue 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.'' . . .
       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. . . .
       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 vs. Georgia, 1980) . . . 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.