Blackmun Vows Never Again to Vote for Death Penalty : Law: Justice says the judicial system remains arbitrary, biased against the poor and blacks. He helped restore capital punishment in 1976.


Justice Harry A. Blackmun, the oldest and longest-serving member of the Supreme Court, announced Tuesday that he will vote to oppose all future death sentences, contending that the system for imposing capital punishment is still arbitrary and biased against poor and black defendants.

“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.”

Blackmun expressed his views in a formal statement as he cast the only vote to stay the execution of a convicted Texas killer who is scheduled to die today by lethal injection. No other justice signed the statement and its immediate impact is likely to be negligible. A solid majority of the court has supported capital punishment, often with Blackmun in dissent.


Nonetheless, his 22-page statement amounts to an extraordinary admission of failure--both on his part and on the part of the high court itself--to assure that the death penalty was fairly and rationally imposed in all cases.

Appointed in 1970 by President Richard Nixon and proclaimed to be a law-and-order judge, Blackmun in his early years dutifully supported the death penalty. As one of the so-called “Nixon justices,” he played a key role in restoring capital punishment in 1976.

But after struggling mightily since then to assure fairness in the death penalty, Blackmun said Tuesday, he has thrown up his hands in disgust.

“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.”


Death sentences are imposed under state law, but the 14th Amendment to the Constitution says that no person may be deprived of “life . . . without due process of law.” Invoking that clause, the Supreme Court has carefully examined the cases of all 228 persons who have been executed since 1976.

Two years after Blackmun joined the court, a liberal majority voted to strike down all capital punishment laws because they permitted “arbitrary and capricious” punishment. One justice characterized death sentences then as a “lightning bolt,” more a product of bad luck than rational choice. For example, in some cases involving barroom brawls or violent rapes, the perpetrator could get a death sentence, while a mass murderer might be spared and sentenced to a long prison term.

New laws were needed, the court said then, to target the worst of criminals.

Jurors needed guidance so that they might impose the harshest punishment for the most calculated and brutal murders. Four years later, the justices upheld the new generation of death penalty laws, with Blackmun casting a key vote in their favor.

Term after term since then, the justices have refined the procedures. In 1977, they outlawed death sentences for rape and other crimes short of murder. Repeatedly, they insisted that a state’s system provide fairness across the board, while also giving each individual the benefit of the doubt. Next month, the high court has agreed to hear arguments on whether California’s death sentencing law gives jurors enough guidance in deciding whether a convicted killer gets death or life in prison.

Blackmun conceded that the system is 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.


Unquestionably, Blackmun is out of step with his colleagues, as well as with the public at large. Opinion surveys have shown that most Americans seek swifter and harsher punishment for violent criminals, not greater procedural fairness for accused killers.

In a three-page reply, Justice Antonin Scalia derided his senior colleague for voicing sympathy for the soon-to-be executed 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 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.”