U.S. Supreme Court Associate Justice Harry A. Blackmun, the court senior justice who recently announced his retirement, has firmly held as a matter of constitutional law that the death penalty, as currently administered, is unconstitutional. Blackmun in a dissenting opinion in Callins vs. Collins announced this 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 precedent from its death docket is a grim telling of judicial restrictions. Cases stemming from the 1976 case, Gregg 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 its bench mates 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 Gregg 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 Gregg 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 Gregg, 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 mantel 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 Callins, Blackmun suggests it 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 and 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. For more information about my case, racism, and the death penalty, and what you can do contact Equal Justice USA at 301-699-0042.
