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Blackmun's Challenge


Chicago. -- There are statements that go down in history even if they seem to be quixotic verbal gestures at the time. I think, for instance, of Joseph Welch's question of Joseph McCarthy: "At long last, have you left no sense of decency?" Or Lillian Hellman's statement to the House Un-American Activities Committee: "I cannot and will not cut my conscience to fit this year's fashions." These few words live on because they put large events in the sharpest kind of moral focus.

We can add another sentence to that list of catalytic verbal agents, Harry Blackmun's words in the Supreme Court's refusal to review a death-penalty case. You do not need to memorize the words; they will be coming back to haunt others and to vindicate Justice Blackmun. He wrote in his dissent: "From this day forward, I no longer shall tinker with the machinery of death."

His argument was not that capital punishment is cruel and unusual, and therefore outlawed by the Eighth Amendment. Instead, he said that punishment, as administered in fact, denies people the due process promised by the Fifth Amendment.

Judge Antonin Scalia answered that the Fifth Amendment specifically says that the death penalty can be inflicted if due process is observed. Of course -- Justice Blackmun is not so stupid that he could not read the reference to death. He said only, in effect, that IF due process is observed is a big if.

Who can think that the death penalty is justly inflicted when we see the Menendez brothers walk free from their first trial, while poor defendants, themselves more abused by parents and poverty and circumstances than the Menendezes, go to the electric chair?

It would be bad enough if the death penalty were just a lottery, depending on the chances of jury selection, venue and legal skill to determine who wins and who loses. In fact, the odds are not random but stacked, in favor of the rich, the socially acceptable, those affected by class expectations. Well-off defendants like the Menendezes are presumed not to act badly without extreme provocation. The lower-class poor are presumed to act badly in all imaginable cases. There is no way of erasing such presumptions from every juror's mind.

Statistics prove that capital punishment does not deter. Those who defend the death penalty argue instead for a "social gratification" from the death penalty -- that people feel uncomfortable if they cannot inflict death on those who have killed others. Justice Scalia used that argument in his answer to Mr. Blackmun's dissent. The same argument could be advanced in defense of lynch law -- the community wanted to kill the killer, and its gratification came first.

Justice Blackmun says no. He will now live in history, and will ultimately prevail. Move over, Joseph Welch, Lillian Hellman. You have a compeer in moral definition.

Garry Wills is a syndicated columnist.

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