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Read the
following statements by Justices Blackmun and Scalia. Write B in the blank if the statement
represents Justice Blackmun’s views, write S in the blank if the statement represents
Justice Scalia’s views, write Both in the blank if it reflects both justices’ views,
or write N in the blank if this statement reflects neither justices’
views.
Justice Harry A. Blackmun, then the oldest and longest-serving member
of the Supreme Court, announced in the case of Collins v. Collins that he would vote to
oppose all future death sentences. He stated that the system for imposing capital punishment was
still arbitrary and biased against poor and black defendants. (Justice Blackmun died in
1999.)
“From this day forward, I no longer shall tinker with the
machinery of death,” the 85-year-old justice said. “I believe that the death penalty, as
currently administered, is unconstitutional.
“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,” he wrote. No set of laws has excluded “the virus of racism,” nor have any set
of procedures precluded the possibility that an innocent person is executed, he
said.
“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.”
Blackmun conceded that the system was far better than in
1972, but concluded that it “remains fraught with arbitrariness, discrimination, caprice and
mistake.”
“Perhaps one day this court will develop procedural
rules or verbal formulas that actually will provide consistency, fairness and reliability in a
capital punishment scheme,” he said. “I am not optimistic that such a day will come. I am
more optimistic,” he added, that a future court will abolish capital punishment
entirely.
Justice Antonin Scalia criticized his senior colleague for voicing
sympathy for the Texas murderer while ignoring the fate of his victim. While Blackmun spoke of the
accused with “intravenous tubes attached to his arms,” Scalia called for a close look at
the crime.
“The murder of a man ripped by a bullet suddenly and
unexpectedly, with no opportunity to prepare himself or 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,” Scalia wrote. He also faulted Blackmun for relying on his “intellectual,
moral, and personal perceptions,” rather than the “text and tradition of the
Constitution.”
“Convictions in opposition to the death penalty are
often passionate and deeply held,” Scalia noted. “That would be no excuse for reading them
into a Constitution that does not contain them . . .Much less is that any excuse for using that
course to thrust a minority’s view upon the people.”
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