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Tinkering with the machinery of death

Harry Blackmun had his epiphany back in 1994, in Callins v. Collins, a death penalty case from the capital of death penalty cases, Texas.  The facts of Callins' case are unimportant now, and few would remember his execution, which occurred the day after Blackmun wrote his dissenting opinion in his case.  What is memorable is Blackmun's agonizing over "the unenviable task of determining whether some human being is to live or die," and his conclusion:

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. 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.

Oregon Gov. John Kitzhaber reached his epiphany yesterday.  Oregon has executed two people since the death penalty was reinstated in 1976 -- anymore, that's a slow month in Ohio -- and Kitzhaber was the governor both times, in 1996 and 1997.  (After serving two terms in the 1990's, he went back to his medical practice, but then ran again and was elected in 2010.)  The third time was the charm, as they say:  with the execution of Gary Haugen looming, Kitzhaber issued a reprieve and announced a moratorium on capital punishment.  His announcement echoed the same problems that Blackmun had found:

The death penalty as practiced in Oregon is neither fair nor just; and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury.

Kitzhaber noted that the two inmates put to death in 1996 and 1997 were "volunteers"; they'd dropped their appeals.  So was Haugen.  While the district attorney and the victim's families criticized Kitzhaber, so did the intended beneficiary of his decision; as this article notes, according to Haugen's lawyer, the likelihood is that "the decision will greatly disappoint Haugen, who chose execution as a political protest and a path to freedom from the confines of death row." 

 Kitzhaber, a phsyician, was morally opposed to the death penalty, but his explanation, and Blackmun's, point out that there are two aspects of the morality of capital punishment.  The first, of course, is whether the state has the right to kill.  Everybody knows the arguments on that, and frankly, I think there's a legitimate argument on both sides.  Blackmun began his opinion in Callins by describing in some detail the mechanism by which Callins would be killed, offering the opportunity for a perfect rejoinder by Scalia, which he took to the fullest:

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 next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional -- for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat.  How enviable a quiet death by lethal injection compared with that!

Point to Scalia.  But there's another aspect to the morality of capital punishment that Scalia ignores, and it's actually the aspect that Blackmun -- and Kitzhaber -- found more troublesome:  the sheer arbitrariness of the penalty.  As some have observed, the death penalty is not reserved, as it should be, for the worst of the worst, it is imposed on the unluckiest of the unlucky:  those who have committed their crime in a county which has the resources to pursue the tremendous costs of a death penalty case, those with bad lawyers, those with jurors hardened enough to impose the maximum penalty, as so few jurors are willing to do any more.

Actually, as Blackmun pointed out in his dissent, the second Justice Harlan put his finger on the problem in 1971:

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.

Kitzhaber's decision is the latest to agree with Harlan that creating a rational, workable, and non-arbitrary system of capital punishment is simply impossible.  Oregon has declared a moratorium on capital punishment, and Illinois, New Jersey, New York, and New Mexico have abolished it outright in the past four years.  But that's not where the real trend is.  In 1996, 315 people were sentenced to die; last year, only 114 were.  Troy Davis was executed two months ago despite recantations by seven of the nine witnesses against him, and several jurors who'd sat on his trial expressed the view that they would have decided the case differently -- certainly the penalty -- had they known of that.  In the face of evidence of the fallibility of capital punishment -- the count of people sentenced to death who were subsequently exonerated is up to 138 -- a person sitting on a death penalty jury has to have in the back of his mind, what if I vote to kill this guy and ten years later it comes out that he didn't do it?  Especially if he's executed before that comes out?

What will eventually end the death penalty is when jurors decide that they will no longer tinker with the machinery of death.  And that day is approaching.

Enjoy the holiday, and I'll see you on Monday.

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