Justice Blackmun says 'no' to death penalty


WASHINGTON -- Supreme Court Justice Harry Blackmun has ended a tortuous personal odyssey on the death penalty by using a Dallas man's case to declare that capital punishment is unconstitutional.

In an extraordinary statement, Justice Blackmun contended yesterday that administration of the death penalty is fraught with errors, unfairness and inconsistency that the judiciary is not correcting.

"From this day forward, I no longer shall tinker with the machinery of death," the veteran jurist wrote in a 22-page dissent from the court's decision not to review Bruce Edwin Callins' death case.

"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."

Justice Blackmun, the lone dissenter in the case, is the first sitting court member since the 1991 retirement of the late Thurgood Marshall to announce his opposition to the death penalty in all instances.

Death penalty opponents hailed Justice Blackmun's courage and called his statement an important symbol of the need for reform.

"He was there when they struck down the death penalty; he was there when they brought it back. He was there for 18 years of tinkering. He knows the problems as well as anybody," said Leigh Dingerson, executive director of the National Coalition Against the Death Penalty.

Late yesterday in Fort Worth, Texas, U.S. District Judge Terry Means halted the execution after Callins' attorneys challenged his simultaneous conviction on capital murder and robbery charges.

"He'll go from court to court to court trying to get someone to take some action, but we don't expect he'll be successful," said Ron Dusek, a spokesman for Texas Attorney General Dan Morales.

Collins would be the 73rd person executed in Texas since 1982.

Justice Blackmun, who was appointed to the high court in 1970 by President Nixon, often has expressed deep reservations about the death penalty while voting to allow its imposition in hundreds of cases.

He was one of four dissenters in the landmark 1972 Georgia case in which the court struck down the death penalty. He was in the majority when the court reinstated the death penalty four years later.

But, after a series of dissents in high-profile capital cases, Justice Blackmun has signaled recently that he was poised to find that the death penalty no longer complied with constitutional dictates.

During a nationally televised interview in November, he singled out the rapid rate of executions in Texas while describing how "I cringe" every time he faced a death penalty case.

Justice Antonin Scalia offered the court's sole response to Blackmun. He stated that the Constitution "clearly permits" capital punishment and decried attempts to apply "intellectual, moral and personal" perceptions to the law.

"Convictions in opposition to the death penalty are often passionate and deeply held," Justice Scalia wrote. "That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans.

"Much less is there any excuse for using that course to thrust a minority's views upon the people," he stated.

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