For Justice Blackmun, passion and conscience

Last week, Supreme Court Justice Harry A. Blackmun took a moral stand on the death penalty, rocking a country grown suspicious of moral stands. "From this day forward, I no longer shall tinker with the machinery of death," wrote Justice Blackmun in a passionate, controversial 22-page opinion. The associate justice was the court's lone dissenter in a Texas case.

He continued: "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's view was opposed by Justice Antonin Scalia, who sneered at such "intellectual, moral, and personal perceptions." Justice Scalia argued that the Fifth Amendment "clearly permits the death penalty to be imposed, and establishes beyond doubt that the death penalty is not one of the 'cruel and unusual punishments' prohibited by the Eighth Amendment."

It is easy, these days, to assume that a man who votes his conscience is being emotional rather than rational.


Justice Scalia, on the other hand, has taken a seemingly dispassionate position behind the letter of the law: The Constitution permits the death penalty, he is saying, therefore the issue is out of my hands.

Yet, Justice Scalia's opinion also rings with passion. Referring to the case at hand -- the death sentence appeal of a Texas man convicted of shooting a tavern employee during a robbery -- Justice Scalia argued that a sentence of death by lethal injection is merciful compared to the fate of the defendant's victim: "The murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare his affairs . . . The death by injection which Justice Blackmun describes looks pretty desirable next to that."

Describing another case, the rape and murder of an 11-year-old girl, Justice Scalia concluded: "How enviable a quiet death by lethal injection compared with that!"

Only a man purple with passion would argue that one form of death is more enviable than another.

So, let's get those preconceptions out of the way right now: This is not a debate between the rational and the irrational. The death penalty inspires intense emotions on both sides.

But there is a difference. On one side, proponents of capital punishment argue that the Constitution permits executions and therefore they ought to be imposed. They dismiss concerns about fairness and proportionality with the observation that the Constitution does not use either term.

Proponents of capital punishment, illustrated by Justice Scalia, offer passion without responsibility.

Opponents, exemplified by Justice Blackmun, note that the law continues to be arbitrary in its application, striking hardest on the poor, on the mentally incompetent and on minorities. Opponents say that a punishment that cannot be applied fairly and consistently ought not to be applied at all.


Such people offer passion with a conscience.

I vote with Justice Blackmun. So do most nations in the developed world. So do 13 of the 50 states, the District of Columbia and Puerto Rico.

Alas, 37 states -- including Maryland, my Maryland -- continue to tinker with the machinery of death. Two weeks ago, the Maryland Senate agreed to switch the state's method of execution from the gas chamber to lethal injection, supposedly more humane. A similar bill is pending in the House. Last week, a Senate subcommittee approved a bill designed to limit the appeals process to six years. Lawmakers fret that although there are 14 persons on death row, Maryland has not had an execution since 1961.

Last week, Justice Blackmun wrote: "It seems that the decision whether a human being should live or die is so inherently subjective, rife with all of life's prejudices and understandings, experiences, prejudices and passions, that it inevitably defies the rationality and consistency required by the Constitution."

But we do not care, here in Maryland. We prefer to continue to tinker with the machinery of death. It is ugly. It is acting out our passions without conscience.