U.S. Supreme Court Associate Justice Harry A. Blackmun, the court Senior Justice, who recently announced his retirement, has finally held as a matter of constitutional law, that the death penalty as currently administered, is unconstitutional. Blackmun, in a dissenting opinion, in Callins v. Collins, announced his position in a lengthy dissent that severely criticized the court majority for “having virtually conceded that both fairness and rationality cannot be achieved” in death penalty cases, added, “The court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics.” In what appeared to be judicial bitterness, Blackmun further announced, “From this day forward, I no longer shall tinker with the machinery of death.”
Blackmun’s dissent, recounting Supreme Court precedents from its death docket, is a grim telling of judicial restrictions: cases stemming from the 1976 case Greg v. Georgia, which reinstated the death penalty, to more recent cases like Herrera v. Collins, where the court denied a hearing to a man trying to prove innocence. But if Blackmun’s denunciation of his benchmates seemed bitter, the response from some on death row seemed equally acerbic. “Why now?” asked one. “What it mean?” said another. The 85 year old jurist’s long trek from Greg v. Georgia, where the death penalty was reinstated, to Callins v. Collins, where he condemns capital punishment process to unconstitutionality in a singular dissent, comes almost a quarter of a century too late for many in the shadow of the Death House. Blackmun’s critical fifth vote with the Greg majority made the death penalty possible and formed the foundation for the plethora of cases that he now condemns in Callins, like McCleskey, Herrera, Sawyer, and others, for without Greg, the others would not be. Further, Blackmun’s dissent, though remarkable, impassioned discourse, is of negligible legal force and will save not one life, not even defendant Callins.
Blackmun, in his death penalty jurisprudence, at least, assumes the late Justice Marshall’s mantle of the ‘lone dissenter’, a Jeremiah preaching out in a dry, searing judicial wilderness where few will hear and none will heed his lamentations. Had he joined Marshall while he lived, and Brennan while he adjudicated, a life block might have emerged with enough light and enough strength to fashion a bare majority by attracting two stragglers. But this never occurred and in his dissent in Collins, Blackmun suggests may never occur, as he wrote, “Perhaps one day this court will develop procedural rules and 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 affliction of death is so plainly doomed to failure that it, and the death penalty, must be abandoned altogether. I may not live to see that day, but I have faith that eventually it will arrive.” To which some on death row opine, no time soon. From death row, this is Mumia Abu-Jamal.
These commentaries are recorded by Prison Radio.