Dissenting Opinion
dissеnts 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 Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury, . . . nor be deprived of life,... without due process of law.” This clearly permits the death penalty to be imposed, and establishes beyond doubt that the death penalty is not one of the “cruel and unusual punishments” prohibited by the Eighth Amendment.
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,
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,
“[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 cause 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 reрresented 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 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
Dissenting Opinion
dissenting.
On February 23, 1994, at 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 spеcifically 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, follоw 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
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,
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,
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 procedurаl 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.
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 idеntify 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 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 аssociated 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,
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,’ ”
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,
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 sеntencing; 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. § 921.141(5)(h) (1977), or “wantonly vile, hоrrible or inhuman,” see Ga. Code Ann. §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. § 14-17 (Supp. 1975). But see Woodson v. North Carolina,
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,
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
The Court elaborated on the principle of individualized sentencing in Lockett v. Ohio,
C
I believe the Woodson-Lockett linе 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,
“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*1151 so strongly to our belief that senteneers 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,
This dilemma was laid bare in Penry v. Lynaugh,
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.
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.
E
The arbitrariness inherеnt 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. “‘[T]he power to be lеnient [also] is the power to discriminate.’ ” McCleskey v. Kemp,
A renowned example of racism infecting a capital sentencing scheme is documented in McCleskey v. Kemp,
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 Bаldus 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
“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,
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,
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.” 28 U. S. C. § 2254(a). Serious review of these claims helps to ensure that government does not secure the penalty of death by
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.
Ill
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,
Notes
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,
Because I conclude that no sentence of death may be constitutionally imposed under our death penalty scheme, I do not address Cabins’ 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,
See Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L. Rev. 1147, 1162 (1991).
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. Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 27-28 (1980) (arguing that the
See Clemons v. Mississippi,
See Johnson v. Texas,
The Court has also refused to hold the death penalty unconstitutional per se for juveniles, see Stanford v. Kentucky,
See Arave v. Creech,
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,
Lead Opinion
C. A. 5th Cir. Certiorari denied.