For over two decades the Supreme Court has wrestled term after term after term to fashion a jurisprudence of capital punishment. That it has failed is obvious. This week, two justices agreed that what has been fashioned doesn't work, though they disagreed on what must be done about it. The problem, as restated by Justices Harry Blackmun and Antonin Scalia is as follows:
A majority of the justices agreed in 1972 that the death penalty must not be imposed in an arbitrary way. But it was being so imposed. Ax Murderer A got the chair and Ax Murderer B got life in prison, even when all the circumstances of the crimes were the same. The Supreme Court decided that the executed were " therefore victims of "cruel and unusual punishment," which is forbidden by the Eighth Amendment of the Constitution.
With the Supreme Court looking over their shoulders, state legislators began to draft statutes which restricted death sentences to very specific situations. The aim was to avoid discretion and disparity in capital sentencing. To a large degree, consistency was achieved. But then the court also said that sentencing judges or juries could take into account such things as a defendant's character or unusual circumstances of the offense. A sentence to be fair must suit each defendant's uniqueness.
So judges and juries, told they could not sentence defendants to death except when a certain set of factors was present, were also told they didn't have to sentence them to death just because those factors existed. That is a formula for arbitrariness, and that is exactly what it has produced.
Hundreds have been executed and hundreds guilty of very similar crimes have not: the court is right back where it was in 1972. "Experience has shown," Justice Blackmun said, "that the consistency and rationality [required by the court in 1972] are inversely related to the fairness owed the individual [required in 1978 and 1982 decisions] when considering the sentence of death." You can't always be consistent and fair, he suggested. Since the Constitution requires both in capital sentencing, capital punishment is unconstitutional.
Therefore, Mr. Blackmun announced, "from this day forward, I no longer shall tinker with the machinery of death." He will automatically vote against every death sentence that comes before him. We don't see how any principled justice could disagree, after looking at what has transpired in the past 20 years in legislatures, in courtrooms, jury rooms and on death rows. Justice Scalia disagrees, but weakly. He says that since the court's commands for consistency and fairness are "irreconcilable," the Supreme Court should just abandon one or the other.
It's hard to take that seriously, since whichever element was cast aside -- fairness or consistency -- the resultant laws would be as unconstitutional as they were before 1972, and another 20 years of unproductive and bloody tinkering with the legal machinery of death would start.