In 1972, the US Supreme Court ruled in Furman v. Georgia (408 US 238) that the death penalty laws in the US at that time violated the 8th Amendment. It was the ultimate split decision — five justices voted to strike down the laws and four voted to uphold them, with every single justice writing his own separate opinion either concurring in the result or opposing it.

States then scrambled to write new death penalty laws, and the legal battles continued. In 1994, one of the four minority justices in Furman — Harry Blackmun — took the unusual step of writing a dissent to a decision by his colleagues to refuse to hear an appeal on the death penalty case of Callins v. Collins. In his dissent, he described how his views on the death penalty had changed (emphasis added):

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. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, ___ U. S. ___ (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, ___ U. S. ___ (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. ___ (1991). 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.

Antonin Scalia took Blackmun to task in his own concurrence with the majority in that case, justifying his support for the death penalty with a blunt “How enviable a quiet death by lethal injection compared with” what many murder victims go through. The machinery is just fine, thankyouverymuch, says Scalia.

But it gets worse. Scott Lemieux of Lawyers, Guns, & Money points to another of Scalia’s intellectually bankrupt lines of reasoning in an earlier death penalty case, in which Scalia assures everyone that since the power to pardon is well-suited to make sure that no innocent yet convicted people are executed, appellate courts need not worry about actual innocence but can focus solely on whether the right procedures were followed in the trial courts.

Right.

When governors get cheers for how many executions they have presided over, I’m not sure they’re going to be anxious to jump in and clean up the mess that judges and SCOTUS justices have left for them and issue a pardon or commutation instead of adding another notch to their capital punishment belt.

Blackmun ended his dissent in Callins with these words:

Perhaps one day this Court will develop procedural rules or 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 infliction of [death] is so plainly doomed to failure that it–and the death penalty–must be abandoned altogether.” Godfrey v. Georgia, 446 U.S. 420, 442 (1980) (Marshall, J., concurring in the judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent.

Blackmun died in 1999, and the executions continue.

I believe the death penalty as it is practiced in the US is about vengeance, not justice. I also share Blackmun’s statement of the problem: “the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants.” The combination of these two is truly destructive, because the lust for vengeance puts increasing pressure on the legal and political system to rack up the body count. As Shark-fu said, comparing another Georgia execution 100 years ago with Troy Davis’ more recent one, “the mob is still out for vengeance and fueled with rage.”

We continue to tinker with the machinery of death, and we continue to be diminished as a society as a result.

I concur in Justice Blackmun’s dissent.