Callins v. Collins 511 US 127, 114 S. Ct 1127 (1994)
Justice BLACKMUN, dissenting from denial of certiorari.
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
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, (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, 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, (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. 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, (1987), the Court has chosen to deregulate the entire enterprise,
replacing, it would seem, substantive constitutional requirements
with mere esthetics, 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. [FN1] 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, (1993), relevant mitigating evidence to be
disregarded, see, e.g., Johnson v. Texas, (1993), and vital judicial
review to be blocked, see, e.g., Coleman v. Thompson, (1992). 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.[FN2]
FN1. 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.
FN2. 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."
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." That a capital
defendant facing imminent execution is required to meet such a standard
before the Court will remedy constitutional violations is indefensible.
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.
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, (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." Id., at 313, 92 S.Ct., at 2764. 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."
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.' " I objected to the "suddenness of the Court's
perception of progress in the human attitude since decisions of
only a short while ago." Four years after Furman was decided, I
concurred in the judgment in Gregg v. Georgia, (1976), and its companion
cases which upheld death sentences rendered under statutes passed
after Furman was decided. See Proffitt v. Florida, (1976), and Jurek
v. Texas, (1976). Cf. Woodson v. North Carolina, (1976), and Roberts
v. Louisiana.
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.
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, 96 S.Ct., at 2932 (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 to 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. § 921.141(5)(h) (1977), or "wantonly vile,
horrible 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, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (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. § 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. 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, 96 S.Ct.,
at 2991 (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, 96 S.Ct., at 2991. 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, 96 S.Ct., at 2989. The Court elaborated on
the principle of individualized sentencing in Lockett v. Ohio, 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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 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, 98 S.Ct., at
2964-2965 (emphasis in original). See also Sumner v. Shuman, 483
U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (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, 102 S.Ct.,
at 874.
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, 96 S.Ct., at
2947 (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, 107 S.Ct. 837, 93 L.Ed.2d 934 (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 [96 S.Ct., at 2928] (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, 107 S.Ct., at 850. 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, 108 S.Ct. 2320, 2331-2332, 101 L.Ed.2d
155 (1988) (plurality opinion); California v. Brown, 479 U.S., at
544, 107 S.Ct., at 840 (O'CONNOR, J., concurring); McCleskey v.
Kemp, 481 U.S., at 363, 107 S.Ct., at 1804 (BLACKMUN, J., dissenting);
Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 903, 122 L.Ed.2d
260 (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, 96 S.Ct., at 2936 (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, 107 S.Ct., at 840 (O'CONNOR, J., concurring).
**1134 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, 109 S.Ct. 2934,
106 L.Ed.2d 256 (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: "[I]t 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, 109 S.Ct., at 2949. 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, 109 S.Ct., at 2950.
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.
[FN3] 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, 113 S.Ct., at 917 (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).
FN3. See Sundby, The Lockett Paradox: Reconciling Guided
Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA
L.Rev. 1147, 1162 (1991).
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. [FN4] 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 **1135 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.
FN4. 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 inherent arbitrariness of the
death penalty is only magnified by post-Furman statutes that allow
the jury to choose among similarly situated defendants).
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. " '[T]he power to be
lenient [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, (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." 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, 107 S.Ct., at 1785 (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." I joined most of Justice Brennan's significant
dissent which expounded McCleskey's Eighth Amendment claim, and
I wrote separately, id., at 345, 107 S.Ct., at 1795, 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 'sober second thought.' Stone, The Common Law in the United States,
50 Harv.L.Rev. 4, 25 (1936)."
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, 113 S.Ct., at 912 (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. 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, [FN5] allowing relevant
mitigating evidence to be discarded, [FN6] vague aggravating circumstances
to be employed, [FN7] 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, 506 U.S., at 478, 113 S.Ct., at
903 (THOMAS, J., concurring) (calling for the reversal of Penry
); Walton v. Arizona, (1990) (SCALIA, J., concurring in part and
concurring in 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. 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.
FN5. See Clemons v. Mississippi, (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, (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).
FN6. See Johnson v. Texas, (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, (1993). See also Saffle v. Parks, (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, (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, 110 S.Ct. 3047, 111
L.Ed.2d 511 (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,
(1989), and the mentally retarded, see Penry v. Lynaugh, (1989).
FN7. See Arave v. Creech, (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, (1990) (affirming lenient standard
for the review of the constitutional adequacy of aggravating circumstances).
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, (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, (1992)
(BLACKMUN, J., concurring in judgment). See also Herrera, 506 U.S.,
at 438-439, 113 S.Ct., at 880-881 (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, 505
U.S., at 351, 112 S.Ct., at 2525 (BLACKMUN, J., concurring in judgment).
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 **1138
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., at 227, 96 S.Ct., at 2950, 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, 505 U.S., at 351, 112 S.Ct.,
at 2525 (BLACKMUN, J., concurring in judgment).
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. [FN8] The
Court is unmoved by this 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.
FN8. Even the most sophisticated death penalty schemes are
unable to prevent human error from condemning the innocent. Innocent
persons have been executed, and will continue to be executed under
our death penalty scheme. 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, (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. U.S.,1994
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