CALLINS v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION
No. 93-7054
Supreme Court of the United States
February 22, 1994
510 U.S. 1141
No. 93-1051. SINGLETARY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS v. DUEST. C. A. 11th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.
No. 93-1078. BALTIMORE TEACHERS UNION, AMERICAN FEDERATION OF TEACHERS LOCAL 340, AFL-CIO, ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE, MARYLAND, ET AL.; and No. 93-1173. BALTIMORE CITY LODGE NUMBER 3, FRATERNAL ORDER OF POLICE v. MAYOR AND CITY COUNCIL OF BALTIMORE, MARYLAND, ET AL. C. A. 4th Cir. Motion of Fraternal Order of Police, Grand Lodge, for leave to file a brief as amicus curiae in No. 93-1173 granted. Certiorari denied.
No. 93-7054. CALLINS v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION. C. A. 5th Cir. Certiorari denied.
JUSTICE SCALIA, concurring.
JUSTICE BLACKMUN dissents from the denial of certiorari in this case with a statement explaining why the death penalty “as currently administered,” post, at 1159, is contrary to the Constitution of the United States. That explanation often refers to “intellectual, moral, and personal” perceptions, but never to the text and tradition of the Constitution. It is the latter rather than the former that ought to control. The
As JUSTICE BLACKMUN describes, however, over 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, 408 U. S. 238 (1972) (per curiam), but the sentencer‘s discretion not to impose death (to extend mercy) must be unlim
Though JUSTICE BLACKMUN joins those of us who have acknowledged the incompatibility of the Court‘s Furman and Lockett-Eddings lines of jurisprudence, see Graham v. Collins, 506 U. S. 461, 478 (1993) (THOMAS, J., concurring); Walton v. Arizona, 497 U. S. 639, 656-673 (1990) (SCALIA, J., concurring in part and concurring in judgment), he unfortunately draws the wrong conclusion from the acknowledgment. He says:
“[T]he 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.” Post, at 1157.
Surely a different conclusion commends itself—to wit, that at least one of these judicially announced irreconcilable commands which causе the Constitution to prohibit what its text explicitly permits must be wrong.
Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority‘s views upon the people. 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 tо 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
JUSTICE BLACKMUN, dissenting.
On February 23, 1994, аt 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 thаn 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 remаin uneasy. Twenty years have passed since this
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, thеse 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
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 combinatiоn 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, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know
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 attemрting 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.
In McGautha, the petitioner argued that a statute which left the penаlty of death entirely in the jury‘s discretion, without any standards to govern its imposition, violated the
A year later, the Court reversed its course completely in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam, with each of
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
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
Delivering on the Furman promise, however, has proved to be another matter. Furman aspired to eliminatе 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 “esрecially heinous, atrocious, or cruel,” see
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
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 casе.” 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
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 affоrd 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 of the 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 сases 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 sentencers 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, 506 U. S. 461, 478 (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., at 544 (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 “speciаl issues“; if the jury unanimously answered “yes” to each issue, the trial court was obligated to sentence the defendant to death.
After Penry, the paradox underlying the Court‘s post-Furman jurisprudence was undeniable. Texas had complied with Furman by severely limiting the sentenсer‘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, 506 U. S., at 503-504 (STEVENS, J., dissenting) (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 comе 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
E
The arbitrariness inherent in the sentencer‘s discrеtion 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. “‘[T]he power to be lenient [also] is the pоwer 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
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
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
“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 ‘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, 506 U. S., at 494 (THOMAS, J., concurring). 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.
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 v. Collins, 506 U. S. 390, 446 (1993) (BLACKMUN, J., dissenting). 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, 505 U. S. 333, 358 (1992) (BLACKMUN, J., concurring in judgment). See also Herrera, 506 U. S., at 438-439 (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
Federal courts are required by statute to entertain petitions from state prisoners who allege that they are held “in violation of the Constitution or laws or the treaties of the United States.”
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
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. 420, 442 (1980) (Marshall, J., concurring in 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.
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