A sober second thought.

• Author: Schapiro, Andrew H.
• Position: Justice Harry Blackmun's capital punishment jurisprudence

1. INTRODUCTION

   By the year 1994--his twenty-fourth on the Supreme Court--Justice Harry Blackmun was a liberal icon, not only for his authorship and defense of Roe v. Wade, (1) but also because of his forceful dissents from many of the Rehnquist Court's right-leaning decisions in other areas. So his renunciation that year of the death penalty in Callins v. Collins, (2) while newsworthy and notable, would not have struck the casual observer as out of character or inconsistent with his jurisprudence. But from the vantage point of 1972--when Justice Blackmun was among the dissenters in Furman v. Georgia (3)--Callins could hardly be more surprising. Justice Blackmun's journey from Furman to Callins is the remarkable and instructive story of a Justice reluctantly concluding that the Court's quest for a constitutionally acceptable and administratively manageable death penalty, a quest in which he had been a principal participant, could not succeed.

   The evolution of Justice Blackmun's capital jurisprudence proceeded in three stages. From 1972 until 1986, he was, to use his famous phrase from Callins, "tinker[ing] with the machinery of death," (4) seemingly convinced that if only the fight set of rules could be developed the Constitution would be satisfied--despite his personal opposition to capital punishment. The period from 1987 through 1991 can be described as one of disillusionment. Justice Blackmun became more receptive to petitioners' arguments in capital cases and increasingly voiced skepticism about the constitutional adequacy of purported safeguards against arbitrariness, racism, and factual error. The final phase, from 1991 until his opinion in Callins in 1994, was one of dismay. Justice Blackmun dissented in every significant capital case, and spoke out more sharply against the direction that the Court was taking.

   Justice Blackmun identified three fundamental concerns in Callins that led him to give up on the death penalty. The primary one was the impossibility of reconciling the constitutional requirements that capital sentencing be both individualized and non-arbitrary. The insidious influence of race added to the problem. And the evisceration of the safeguard of habeas corpus pushed him across the line. In retrospect the development of each theme is visible in his decisions on capital cases from the 1970s to the 1990s.

2. BACKGROUND: THE FURMAN DISSENT

   Justice Blackmun's personal feelings about the death penalty were never any secret. In Furman he wrote a separate dissent to offer a set of "somewhat personal comments":

   Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood's training and life's experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of "reverence for life." Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments. (5) But when considering the legal arguments in Furman, Justice Blackmun was acutely conscious of his role as a judge:

   I do not sit on these cases, however, as a legislator, responsive, at least in part, to the will of constituents. Our task here, as must so frequently be emphasized and reemphasized, is to pass upon the constitutionality of legislation that has been enacted and that is challenged. This is the sole task for judges. We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great. In fact, as today's decision reveals, they are almost irresistible. (6) He concluded by reiterating the distinction between personal preference and constitutional command:

   Although personally I may rejoice at the Court's result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end. (7) In the decade and a half that followed, Justice Blackmun would try to apply the Constitution to uphold capital sentencing schemes, and would often return to the mantra that the Court ought not second-guess legislative decisions.

3. 1976-1986: TINKERING WITH THE MACHINERY OF DEATH

   When the Court reinstated the death penalty in Gregg v. Georgia, (8) Justice Blackmun wrote simply "I concur in the judgment." (9) That same Term, he dissented from a decision that would ultimately become not only a pillar of the Court's death-penalty jurisprudence but also, two decades later, an important part of his own analysis in Callins: Woodson v. North Carolina. (10) In Woodson the Court held the mandatory imposition of the death penalty unconstitutional because removing the jury's sentencing discretion was not a proper response to the problem identified in Furman: arbitrary imposition of the death penalty. The Court held that death cannot be constitutionally imposed without "consideration of relevant facets of the character and record of the individual offender" and "the circumstances of the particular offense." (11) Failure to do so, the majority wrote, "treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." (12) But Justice Blackmun dissented, citing to his own opinion in Furman as well as the other dissenting opinions written by Justices Burger, Powell, and Rehnquist. (13)

   Nor did Justice Blackmun join the plurality's decision in Lockett v. Ohio. (14) There the plurality took the position that the mitigating factors the Ohio statute permitted to be considered were too limited; the statute was unconstitutional because it did not sufficiently permit individualized considerations. The plurality concluded that

   the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded 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. (15) In other words, "an individualized decision is essential in capital cases." (16)

   Justice Blackmun, however, was unwilling to go as far as did the plurality, and would have held Ohio's death-penalty statute unconstitutional for reasons that he described as "more limited." (17) First, he allowed that imposition of the death penalty for aiding-and-abetting-type crimes could be unconstitutional as applied, where the statute forbids the sentencer to consider the defendant's "extent of ... involvement, or the degree of ... mens rea." (18)

   He also expressed concern that the Ohio statute permitted a trial court judge to dismiss aggravating factors and impose a life sentence "in the interests of justice" where the defendant pleaded guilty or no contest, but not where a defendant insisted on a jury trial. (19) The practical result was that a defendant who pleaded not guilty "endure[d] a semimandatory ... capital-sentencing provision," whereas the defendant who pleaded guilty or no contest faced "a purely discretionary" sentencing provision. (20)

   But what is striking about Lockett is the extent to which Justice Blackmun seemed conflicted--even apologetic--about...