Law & Disorder

The last word, Not the last laugh

by A.J. Wagner

In 1994, Justice Harry Blackmun, in the case of Callins v. Collins, wrote of the death penalty:

“Bruce Edwin Callins will be executed [tomorrow] 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 … will behold Callins … strapped to a gurney, 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 … task of determining whether some human being is to live or die.

We hope … that the defendant whose life is at risk will be represented by … someone who is inspired by the awareness that a less-than-vigorous defense … 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 … committed to the protection of defendants’ rights. . .

But even if we can feel confident that these actors will fulfill their roles … 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, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this … challenge, the death penalty remains fraught with arbitrariness, discrimination … and mistake. . .

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored … to develop … 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 the desired level of fairness has been achieved … I feel … 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… 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, 1980) I may not live to see that day, but I have faith that eventually it will arrive. The path the court has chosen lessen us all.”

Justice Antonin Scalia responded:

“[O]ver the years since 1972, this court has attached to the imposition of the death penalty two quite incompatible sets of commands: the sentencer’s discretion to impose death must be closely confined (see Furman v. Georgia, 1972), but the sentencer’s discretion not to impose death (to extend mercy) must be unlimited (Eddings v. Oklahoma, 1982; Lockett v. Ohio, 1978). These commands were invented without benefit of any textual or historical support; they are the product of just such ‘intellectual, moral and personal’ perceptions as Justice Blackmun expresses today, some of which … have been made part of what is called ‘the court’s Eighth Amendment jurisprudence.’

Though Justice Blackmun joins those of us who have acknowledged the incompatibility of the court’s Furman and Lockett-Eddings lines of jurisprudence … he unfortunately draws the wrong conclusion from the acknowledgment … Surely a different conclusion commends itself, to wit, that at least one of these judicially announced irreconcilable commands which cause the Constitution to prohibit what its text explicitly permits must be wrong. . .

Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

Last week, the men convicted in the case of the 11-year-old girl were released from prison after 30 years. DNA finally proved they did not commit the crime for which Justice Scalia envied them a quiet death by lethal injection.

Just saying.

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AJWagner
A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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