Make your own free website on


Sign up for the AMDCO Newsletter.



___ U.S. ___ (1994)

CALLINS v. JAMES, ___ U.S. ___ (1994)
CALLINS v. JAMES, ___ U.S. ___ (1994)
No. 93-7054

Decided February 22, 1994
The petition for a writ of certiorari is denied.
JUSTICE SCALIA, concurring.
JUSTICE BLACKMUN dissents from the denial of certiorari in this case with a
statement explaining why the death penalty "as currently administered,"
post, at ___, is contrary to the Constitution of the United States. That
explanation often refers to "intellectual, moral and personal" perceptions,
but never to the text and tradition of the Constitution. It is the latter,
rather than the former that ought to control. The Fifth Amendment provides
[n]o person shall be held to answer for a capital . . . crime, unless on a
presentment or indictment of a Grand Jury, . . . nor be deprived of life . .
. without due process of law.
This 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.
As JUSTICE BLACKMUN describes, however, over the years since 1972, this
Court has attached to the imposition of the death penalty two quite
incompatible sets of commands: the sentencer's discretion to impose death
must be closely confined, see Furman v. Georgia, 408 U.S. 238
<>(1972) (per curiam), but
the sentencer's discretion not to impose death (to extend mercy) must be
unlimited, see Eddings v. Oklahoma, 455 U.S. 104
<>(1982); Lockett v. Ohio,
438 U.S. 586  <>(1978)
(plurality opinion). These commands were invented without benefit of any
textual or historical support; they are the product of just such
"intellectual, moral, and personal" perceptions as JUSTICE BLACKMUN
expresses today, some of which (viz., those that have been "perceived"
simultaneously by five members of the Court) have been made part of what is
called "the Court's Eighth Amendment jurisprudence," post, at ___.
Though JUSTICE BLACKMUN joins those of us who have acknowledged the
incompatibility of the Court's Furman and Lockett-Eddings lines of
jurisprudence, see Graham v. Collins, 910-911 (1993) (THOMAS, J.,
concurring); Walton v. Arizona, 497 U.S. 639, 656
<>-673 (1990) (SCALIA, J.,
concurring in part and concurring in the judgment), he unfortunately draws
the wrong conclusion from the acknowledgment. He says:
[T]he proper course when faced with irreconcilable constitutional commands
is not to ignore one or the other, nor to pretend that the dilemma does not
exist, but to admit the futility of the effort to harmonize them. This means
accepting the fact that the death penalty cannot be administered in accord
with our Constitution.
Post at ___. Surely a different conclusion commends itself - to wit, that at
least one of these judicially announced irreconcilable commands which cause
the Constitution to prohibit what its text explicitly permits must be wrong.
Convictions in opposition to the death penalty are often passionate and
deeply held. 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. JUSTICE BLACKMUN begins his
statement by describing with poignancy the death of a convicted murderer by
lethal injection. He chooses, as the case in which to make that statement,
one of the less brutal of the murders that regularly come before us - the
murder of a man ripped by a bullet suddenly and unexpectedly, with no
opportunity to prepare himself and his affairs, and left to bleed to death
on the floor of a tavern. The death-by-injection which JUSTICE BLACKMUN
describes looks pretty desirable next to that. It looks even better next to
some of the other cases currently before us which JUSTICE BLACKMUN did not
select as the vehicle for his announcement that the death penalty is always
unconstitutional - for example, the case of the 11-year-old girl raped by
four men and then killed by stuffing her panties down her throat. See
McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court.
How enviable a quiet death by lethal injection compared with that! If the
people conclude that such more brutal deaths may be deterred by capital
punishment; indeed, if they merely conclude that justice requires such
brutal deaths to be avenged by capital punishment; the creation of false,
untextual and unhistorical contradictions within "the Court's Eighth
Amendment jurisprudence" should not prevent them.
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will
be executed by the State of Texas. Intravenous tubes attached to his arms
will carry the instrument of death, a toxic fluid designed specifically for
the purpose of killing human beings. The witnesses, standing a few feet
away, will behold Callins, no longer a defendant, an appellant, or a
petitioner, but a man, strapped to a gurney, and seconds away from
Within days, or perhaps hours, the memory of Callins will begin to fade. The
wheels of justice will churn again, and somewhere another jury or another
judge will have the unenviable task of determining whether some human being
is to live or die. We hope, of course, that the defendant whose life is at
risk will be represented by competent counsel - someone who is inspired by
the awareness that a less-than-vigorous defense truly could have fatal
consequences for the defendant. We hope that the attorney will investigate
all aspects of the case, follow all evidentiary and procedural rules, and
appear before a judge who is still committed to the protection of
defendants' rights - even now, as the prospect of meaningful judicial
oversight has diminished. In the same vein, we hope that the prosecution, in
urging the penalty of death, will have exercised its discretion wisely, free
from bias, prejudice, or political motive, and will be humbled, rather than
emboldened, by the awesome authority conferred by the State.
But even if we can feel confident that these actors will fulfill their roles
to the best of their human ability, our collective conscience will remain
uneasy. Twenty years have passed since this Court declared that the death
penalty must be imposed fairly, and with reasonable consistency, or not at
all, see Furman v. Georgia, 408 U.S. 238
<>(1972), and, despite the
effort of the States and courts to devise legal formulas and procedural
rules to meet this daunting challenge, the death penalty remains fraught
with arbitrariness, discrimination, caprice, and mistake. This is not to say
that the problems with the death penalty today are identical to those that
were present 20 years ago. Rather, the problems that were pursued down one
hole with procedural rules and verbal formulas have come to the surface
somewhere else, just as virulent and pernicious as they were in their
original form. Experience has taught us that the constitutional goal of
eliminating arbitrariness and discrimination from the administration of
death, see Furman v. Georgia, supra, can never be achieved without
compromising an equally essential component of fundamental fairness -
individualized sentencing. See Lockett v. Ohio, 438 U.S. 586
It is tempting, when faced with conflicting constitutional commands, to
sacrifice one for the other or to assume that an acceptable balance between
them already has been struck. In the context of the death penalty, however,
such jurisprudential maneuvers are wholly inappropriate. The death penalty
must be imposed "fairly, and with reasonable consistency, or not at all."
Eddings v. Oklahoma, 455 U.S. 104, 112
To be fair, a capital sentencing scheme must treat each person convicted of
a capital offense with that "degree of respect due the uniqueness of the
individual." Lockett v. Ohio, 438 U.S. at 605 (plurality opinion). That
means affording the sentencer the power and discretion to grant mercy in a
particular case, and providing avenues for the consideration of any and all
relevant mitigating evidence that would justify a sentence less than death.
Reasonable consistency, on the other hand, requires that the death penalty
be inflicted evenhandedly, in accordance with reason and objective
standards, rather than by whim, caprice, or prejudice. Finally, because
human error is inevitable, and because our criminal justice system is less
than perfect, searching appellate review of death sentences and their
underlying convictions is a prerequisite to a constitutional death penalty
On their face, these goals of individual fairness, reasonable consistency,
and absence of error appear to be attainable: courts are in the very
business of erecting procedural devices from which fair, equitable, and
reliable outcomes are presumed to flow. Yet, in the death penalty area, this
Court, in my view, has engaged in a futile effort to balance these
constitutional demands, and now is retreating not only from the Furman
promise of consistency and rationality, but from the requirement of
individualized sentencing as well. Having virtually conceded that both
fairness and rationality cannot be achieved in the administration of the
death penalty, see McCleskey v. Kemp, 481 U.S. 279, 313
<>, n. 37 (1987), the Court
has chosen to deregulate the entire enterprise, replacing, it would seem,
substantive constitutional requirements with mere aesthetics, and abdicating
its statutorily and constitutionally imposed duty to provide meaningful
judicial oversight to the administration of death by the States.
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. 1 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. 2
In 1971, in an opinion which has proved partly prophetic, the second Justice
Harlan, writing for the Court, observed:
Those who have come to grips with the hard task of actually attempting to
draft means of channeling capital sentencing discretion have confirmed the
lesson taught by the history recounted above. To identify before the fact
those characteristics of criminal homicides and their perpetrators which
call for the death penalty, and to express these characteristics in language
which can be fairly understood and applied by the sentencing authority,
appear to be tasks which are beyond present human ability. . . . For a court
to attempt to catalog the appropriate factors in this elusive area could
inhibit, rather than expand, the scope of consideration, for no list of
circumstances would ever be really complete.
McGautha v. California, 402 U.S. 183, 204
<>, 208 (1971).
In McGautha, the petitioner argued that a statute which left the penalty of
death entirely in the jury's discretion, without any standards to govern its
imposition, violated the Fourteenth Amendment. Although the Court did not
deny that serious risks were associated with a sentencer's unbounded
discretion, the Court found no remedy in the Constitution for the inevitable
failings of human judgment.
A year later, the Court reversed its course completely in Furman v. Georgia,
408 U.S. 238  <>(1972) (per
curiam, with each of the nine Justices writing separately). The concurring
Justices argued that the glaring inequities in the administration of death,
the standardless discretion wielded by judges and juries, and the pervasive
racial and economic discrimination, rendered the death penalty, at least as
administered, "cruel and unusual" within the meaning of the Eighth
Amendment. Justice White explained that, out of the hundreds of people
convicted of murder every year, only a handful were sent to their deaths,
and that there was "no meaningful basis for distinguishing the few cases in
which [the death penalty] is imposed from the many cases in which it is
not." 408 U.S. at 313. If any discernible basis could be identified for the
selection of those few who were chosen to die, it was "the constitutionally
impermissible basis of race." Id. at 310 (Stewart, J., concurring).
I dissented in Furman. Despite my intellectual, moral, and personal
objections to the death penalty, I refrained from joining the majority
because I found objectionable the Court's abrupt change of position in the
single year that had passed since McGautha. While I agreed that the Eighth
Amendment's prohibition against cruel and unusual punishments "`may acquire
meaning as public opinion becomes enlightened by a humane justice,'" 408
U.S. at 409, quoting Weems v. United States, 217 U.S. 349, 378 (1910), I
objected to the "suddenness of the Court's perception of progress in the
human attitude since decisions of only a short while ago." 408 U.S. at 410.
Four years after Furman was decided, I concurred in the judgment in Gregg v.
Georgia, 428 U.S. 153
<>(1976), and its companion
cases which upheld death sentences rendered under statutes passed after
Furman was decided. See Proffitt v. Florida, 428 U.S. 242, 261
<>(1976), and Jurek v.
Texas, 428 U.S. 262, 279
<>(1976). Cf. Woodson v.
North Carolina, 428 U.S. 280, 307
<>(1976), and Roberts v.
Louisiana, 428 U.S. 325, 363
There is little doubt now that Furman's essential holding was correct.
Although most of the public seems to desire, and the Constitution appears to
permit, the penalty of death, it surely is beyond dispute that, if the death
penalty cannot be administered consistently and rationally, it may not be
administered at all. Eddings v. Oklahoma, 455 U.S. at 112. I never have
quarreled with this principle; in my mind, the real meaning of Furman's
diverse concurring opinions did not emerge until some years after Furman was
decided. See Gregg v. Georgia, 428 U.S. at 189 (opinion of Stewart, Powell,
and Stevens, JJ.) ("Furman mandates that where discretion is afforded a
sentencing body on a matter so grave as the determination of whether a human
life should be taken or spared, that discretion must be suitably directed
and limited so as to minimize the risk of wholly arbitrary and capricious
action"). Since Gregg, I faithfully have adhered to the Furman holding, and
have come to believe that it is indispensable to the Court's Eighth
Amendment jurisprudence.
Delivering on the Furman promise, however, has proved to be another matter.
Furman aspired to eliminate the vestiges of racism and the effects of
poverty in capital sentencing; it deplored the "wanton" and "random"
infliction of death by a government with constitutionally limited power.
Furman demanded that the sentencer's discretion be directed and limited by
procedural rules and objective standards in order to minimize the risk of
arbitrary and capricious sentences of death.
In the years following Furman, serious efforts were made to comply with its
mandate. State legislatures and appellate courts struggled to provide judges
and juries with sensible and objective guidelines for determining who should
live and who should die. Some States attempted to define who is "deserving"
of the death penalty through the use of carefully chosen adjectives,
reserving the death penalty for those who commit crimes that are "especially
heinous, atrocious, or cruel," see Fla.Stat. 921.141(5)(h) (Supp. 1976), or
"wantonly vile, horrible or inhuman," see Ga.Code Ann. 27-2534.1(b)(7)
(1978). Other States enacted mandatory death penalty statutes, reading
Furman as an invitation to eliminate sentencer discretion altogether. See,
e.g., N.C.Gen. Stat. 14-17 (Cum.Supp. 1975). But see Woodson v. North
Carolina, 428 U.S. 280
<>(1976) (invalidating
mandatory death penalty statutes). Still other States specified aggravating
and mitigating factors that were to be considered by the sentencer and
weighed against one another in a calculated and rational manner. See, e.g.,
Ga.Code.Ann. 17-10-30(c) (1982); cf. Tex. Code Crim.Proc.Ann., Art.
37.071(c)-(e) (Vernon 1981 and Supp. 1989) (identifying "special issues" to
be considered by the sentencer when determining the appropriate sentence).
Unfortunately, all this experimentation and ingenuity yielded little of what
Furman demanded. It soon became apparent that discretion could not be
eliminated from capital sentencing without threatening the fundamental
fairness due a defendant when life is at stake. Just as contemporary society
was no longer tolerant of the random or discriminatory infliction of the
penalty of death, see Furman, supra, evolving standards of decency required
due consideration of the uniqueness of each individual defendant when
imposing society's ultimate penalty. See Woodson, 428 U.S. at 301 (opinion
of Stewart, Powell, and Stevens, JJ.) referring to Trop v. Dulles, 356 U.S.
86, 101  <>(1958) (plurality
This development in the American conscience would have presented no
constitutional dilemma if fairness to the individual could be achieved
without sacrificing the consistency and rationality promised in Furman. But
over the past two decades, efforts to balance these competing constitutional
commands have been to no avail. Experience has shown that the consistency
and rationality promised in Furman are inversely related to the fairness
owed the individual when considering a sentence of death. A step toward
consistency is a step away from fairness.
There is a heightened need for fairness in the administration of death. This
unique level of fairness is born of the appreciation that death truly is
different from all other punishments a society inflicts upon its citizens.
"Death, in its finality, differs more from life imprisonment than a 100-year
prison term differs from one of only a year or two." Woodson, 428 U.S. at
305 (opinion of Stewart, Powell, and Stevens, JJ.). Because of the
qualitative difference of the death penalty, "there is a corresponding
difference in the need for reliability in the determination that death is
the appropriate punishment in a specific case." Ibid. In Woodson, a decision
striking down mandatory death penalty statutes as unconstitutional, a
plurality of the Court explained:
A process that accords no significance to relevant facets of the character
and record of the individual offender or the circumstances of the particular
offense excludes from consideration in fixing the ultimate punishment of
death the possibility of compassionate or mitigating factors stemming from
the diverse frailties of humankind.
Id. at 304.
While the risk of mistake in the determination of the appropriate penalty
may be tolerated in other areas of the criminal law,
in capital cases the fundamental respect for humanity underlying the Eighth
Amendment . . . requires consideration of the character and record of the
individual offender and the circumstances of the particular offense as a
constitutionally indispensable part of the process of inflicting the penalty
of death.
Ibid. Thus, although individualized sentencing in capital cases was not
considered essential at the time the Constitution was adopted, Woodson
recognized that American standards of decency could no longer tolerate a
capital sentencing process that failed to afford a defendant individualized
consideration in the determination whether he or she should live or die. Id.
at 301.
The Court elaborated on the principle of individualized sentencing in
Lockett v. Ohio, 438 U.S. 586
<>(1978). In that case, a
plurality acknowledged that strict restraints on sentencer discretion are
necessary to achieve the consistency and rationality promised in Furman, but
held that, in the end, the sentencer must retain unbridled discretion to
afford mercy. Any process or procedure that prevents the sentencer from
as a mitigating factor, any aspect of a defendant's character or record and
any circumstances of the offense that the defendant proffers as a basis for
a sentence less than death,
creates the constitutionally intolerable risk that "the death penalty will
be imposed in spite of factors which may call for a less severe penalty."
Id. at 604-605 (emphasis in original). See also Sumner v. Shuman, 483 U.S.
66  <>(1987) (invalidating a
mandatory death penalty statute reserving the death penalty for life-term
inmates convicted of murder). The Court's duty under the Constitution
therefore is to "develop a system of capital punishment at once consistent
and principled but also humane and sensible to the uniqueness of the
individual." Eddings v. Oklahoma, 455 U.S. at 110.
I believe the Woodson-Lockett line of cases to be fundamentally sound, and
rooted in American standards of decency that have evolved over time. The
notion of prohibiting a sentencer from exercising its discretion "to
dispense mercy on the basis of factors too intangible to write into a
statute," Gregg, 428 U.S. at 222 (White, J., concurring), is offensive to
our sense of fundamental fairness and respect for the uniqueness of the
individual. In California v. Brown, 479 U.S. 538
<>(1987), I said in dissent:
The sentencer's ability to respond with mercy towards a defendant has always
struck me as a particularly valuable aspect of the capital sentencing
procedure. . . . [W]e adhere so strongly to our belief that a sentencer
should have the opportunity to spare a capital defendant's life on account
of compassion for the individual because, recognizing that the capital
sentencing decision must be made in the context of "contemporary values,"
Gregg v. Georgia, 428 U.S. at 181 (opinion of Stewart, Powell, and Stevens,
JJ.), we see in the sentencer's expression of mercy a distinctive feature of
our society that we deeply value.
Id. at 562-563.
Yet, as several Members of the Court have recognized, there is real
"tension" between the need for fairness to the individual and the
consistency promised in Furman. See Franklin v. Lynaugh, 487 U.S. 164, 182
<>(1988) (plurality
opinion); California v. Brown, 479 U.S. at 544 (O'CONNOR, J., concurring);
McCleskey v. Kemp, 481 U.S. at 363 (BLACKMUN, J., dissenting); Graham v.
Collins, __ U.S. ___ (1993) (THOMAS, J., concurring). On the one hand,
discretion in capital sentencing must be "`controlled by clear and objective
standards so as to produce nondiscriminatory [and reasoned] application.'"
Gregg, 428 U.S. at 198 (opinion of Stewart, Powell, and Stevens, JJ.),
quoting Coley v. State, 231 Ga. 829, 834, 204 S.E. 2d 612, 615 (1974). On
the other hand, the Constitution also requires that the sentencer be able to
consider "any relevant mitigating evidence regarding the defendant's
character or background, and the circumstances of the particular offense."
California v. Brown, 479 U.S. 538, 544
<>(1987) (O'CONNOR, J.,
concurring). The power to consider mitigating evidence that would warrant a
sentence less than death is meaningless unless the sentencer has the
discretion and authority to dispense mercy based on that evidence. Thus, the
Constitution, by requiring a heightened degree of fairness to the
individual, and also a greater degree of equality and rationality in the
administration of death, demands sentencer discretion that is at once
generously expanded and severely restricted.
This dilemma was laid bare in Penry v. Lynaugh, 492 U.S. 302
<>(1989). The defendant in
Penry challenged the Texas death penalty statute, arguing that it failed to
allow the sentencing jury to give full mitigating effect to his evidence of
mental retardation and history of child abuse. The Texas statute required
the jury, during the penalty phase, to answer three "special issues"; if the
jury unanimously answered "yes" to each issue, the trial court was obligated
to sentence the defendant to death. Tex.Code Crim.Proc.Ann., Art.
37.071(c)-(e) (Vernon 1981 and Supp. 1989). Only one of the three issues -
whether the defendant posed a "continuing threat to society" - was related
to the evidence Penry offered in mitigation. But Penry's evidence of mental
retardation and child abuse was a two-edged sword as it related to that
special issue: "it diminish[ed] his blameworthiness for his crime even as it
indicate[d] that there [was] a probability that he [would] be dangerous in
the future." 492 U.S. at 324. The Court therefore reversed Penry's death
sentence, explaining that a reasonable juror could have believed that the
statute prohibited a sentence less than death based upon his mitigating
evidence. Id. at 326.
After Penry, the paradox underlying the Court's post-Furman jurisprudence
was undeniable. Texas had complied with Furman by severely limiting the
sentencer's discretion, but those very limitations rendered Penry's death
sentence unconstitutional.
The theory underlying Penry and Lockett is that an appropriate balance can
be struck between the Furman promise of consistency and the Lockett
requirement of individualized sentencing if the death penalty is
conceptualized as consisting of two distinct stages. 3 In the first stage of
capital sentencing, the demands of Furman are met by "narrowing" the class
of death-eligible offenders according to objective, fact-bound
characteristics of the defendant or the circumstances of the offense. Once
the pool of death-eligible defendants has been reduced, the sentencer
retains the discretion to consider whatever relevant mitigating evidence the
defendant chooses to offer. See Graham v. Collins, __ U.S. at __ (Stevens,
J., dissenting) (arguing that providing full discretion to the sentencer is
not inconsistent with Furman and may actually help to protect against
arbitrary and capricious sentencing).
Over time, I have come to conclude that even this approach is unacceptable:
it simply reduces, rather than eliminates, the number of people subject to
arbitrary sentencing. 4 It is the decision to sentence a defendant to
death - not merely the decision to make a defendant eligible for death -
that may not be arbitrary. While one might hope that providing the sentencer
with as much relevant mitigating evidence as possible will lead to more
rational and consistent sentences, experience has taught otherwise. It seems
that the decision whether a human being should live or die is so inherently
subjective - rife with all of life's understandings, experiences,
prejudices, and passions - that it inevitably defies the rationality and
consistency required by the Constitution.
The arbitrariness inherent in the sentencer's discretion to afford mercy is
exacerbated by the problem of race. Even under the most sophisticated death
penalty statutes, race continues to play a major role in determining who
shall live and who shall die. Perhaps it should not be surprising that the
biases and prejudices that infect society generally would influence the
determination of who is sentenced to death, even within the narrower pool of
death-eligible defendants selected according to objective standards. No
matter how narrowly the pool of death-eligible defendants is drawn according
to objective standards, Furman's promise still will go unfulfilled so long
as the sentencer is free to exercise unbridled discretion within the smaller
group and thereby to discriminate. "`The power to be lenient [also] is the
power to discriminate.'" McCleskey v. Kemp, 481 U.S. at 312, quoting K.
Davis, Discretionary Justice 170 (1973).
A renowned example of racism infecting a capital sentencing scheme is
documented in McCleskey v. Kemp, 481 U.S. 279
<>(1987). Warren McCleskey,
an African-American, argued that the Georgia capital sentencing scheme was
administered in a racially discriminatory manner, in violation of the Eighth
and Fourteenth Amendments. In support of his claim, he proffered a highly
reliable statistical study (the Baldus study) which indicated that,
after taking into account some 230 nonracial factors that might legitimately
influence a sentencer, the jury more likely than not would have spared
McCleskey's life had his victim been black.
481 U.S. at 325 (emphasis in original) (BRENNAN, J., dissenting). The Baldus
study further demonstrated that blacks who kill whites are sentenced to
death "at nearly 22 times the rate of blacks who kill blacks, and more than
7 times the rate of whites who kill blacks." Id. at 327 (emphasis in
Despite this staggering evidence of racial prejudice infecting Georgia's
capital sentencing scheme, the majority turned its back on McCleskey's
claims, apparently troubled by the fact that Georgia had instituted more
procedural and substantive safeguards than most other States since Furman,
but was still unable to stamp out the virus of racism. Faced with the
apparent failure of traditional legal devices to cure the evils identified
in Furman, the majority wondered aloud whether the consistency and
rationality demanded by the dissent could ever be achieved without
sacrificing the discretion which is essential to fair treatment of
individual defendants:
[I]t is difficult to imagine guidelines that would produce the
predictability sought by the dissent without sacrificing the discretion
essential to a humane and fair system of criminal justice. . . . The dissent
repeatedly emphasizes the need for "a uniquely high degree of rationality in
imposing the death penalty." . . . Again, no suggestion is made as to how
greater "rationality" could be achieved under any type of statute that
authorizes capital punishment. . . . Given these safeguards already inherent
in the imposition and review of capital sentences, the dissent's call for
greater rationality is no less than a claim that a capital punishment system
cannot be administered in accord with the Constitution.
Id. at 314-315, n. 37. I joined most of Justice BRENNAN's significant
dissent, which expounded McCleskey's Eighth Amendment claim, and I wrote
separately, id. at 345, to explain that McCleskey also had a solid equal
protection argument under the Fourteenth Amendment. I still adhere to the
views set forth in both dissents, and, as far as I know, there has been no
serious effort to impeach the Baldus study. Nor, for that matter, have
proponents of capital punishment provided any reason to believe that the
findings of that study are unique to Georgia.
The fact that we may not be capable of devising procedural or substantive
rules to prevent the more subtle and often unconscious forms of racism from
creeping into the system does not justify the wholesale abandonment of the
Furman promise. To the contrary, where a morally irrelevant - indeed, a
repugnant - consideration plays a major role in the determination of who
shall live and who shall die, it suggests that the continued enforcement of
the death penalty in light of its clear and admitted defects is deserving of
a "sober second thought." JUSTICE BRENNAN explained:
Those whom we would banish from society or from the human community itself
often speak in too faint a voice to be heard above society's demand for
punishment. It is the particular role of courts to hear these voices, for
the Constitution declares that the majoritarian chorus may not alone dictate
the conditions of social life. The Court thus fulfills, rather than
disrupts, the scheme of separation of powers by closely scrutinizing the
imposition of the death penalty, for no decision of a society is more
deserving of the "sober second thought." Stone, The Common Law in the United
States, 50 Harv.L.Rev. 4, 25 (1936).
Id. at 343.
In the years since McCleskey, I have come to wonder whether there was truth
in the majority's suggestion that discrimination and arbitrariness could not
be purged from the administration of capital punishment without sacrificing
the equally essential component of fairness - individualized sentencing.
Viewed in this way, the consistency promised in Furman and the fairness to
the individual demanded in Lockett are not only inversely related, but
irreconcilable in the context of capital punishment. Any statute or
procedure that could effectively eliminate arbitrariness from the
administration of death would also restrict the sentencer's discretion to
such an extent that the sentencer would be unable to give full consideration
to the unique characteristics of each defendant and the circumstances of the
offense. By the same token, any statute or procedure that would provide the
sentencer with sufficient discretion to consider fully and act upon the
unique circumstances of each defendant would "thro[w] open the back door to
arbitrary and irrational sentencing." Graham v. Collins, __ U.S. at __
(THOMAS, J., concurring). All efforts to strike an appropriate balance
between these conflicting constitutional commands are futile because there
is a heightened need for both in the administration of death.
But even if the constitutional requirements of consistency and fairness are
theoretically reconcilable in the context of capital punishment, it is clear
that this Court is not prepared to meet the challenge. In apparent
frustration over its inability to strike an appropriate balance between the
Furman promise of consistency and the Lockett requirement of individualized
sentencing, the Court has retreated from the field, 5 allowing relevant
mitigating evidence to be discarded, 6 vague aggravating circumstances to be
employed, 7 and providing no indication that the problem of race in the
administration of death will ever be addressed. In fact, some members of the
Court openly have acknowledged a willingness simply to pick one of the
competing constitutional commands and sacrifice the other. See Graham, __
U.S. at __ (THOMAS, J., concurring) (calling for the reversal of Penry);
Walton v. Arizona, 497 U.S. 639, 673
<>(1990) (SCALIA, J.,
concurring in part and concurring in the judgment) (announcing that he will
no longer enforce the requirement of individualized sentencing, and
reasoning that either Furman or Lockett is wrong, and a choice must be made
between the two). These developments are troubling, as they ensure that
death will continue to be meted out in this country arbitrarily and
discriminatorily, and without that "degree of respect due the uniqueness of
the individual." Lockett, 438 U.S. at 605. In my view, the proper course
when faced with irreconcilable constitutional commands is not to ignore one
or the other, nor to pretend that the dilemma does not exist, but to admit
the futility of the effort to harmonize them. This means accepting the fact
that the death penalty cannot be administered in accord with our
My belief that this Court would not enforce the death penalty (even if it
could) in accordance with the Constitution is buttressed by the Court's
"obvious eagerness to do away with any restriction on the States' power to
execute whomever and however they please." Herrera, __ U.S. at __ (BLACKMUN,
J., dissenting). I have explained at length on numerous occasions that my
willingness to enforce the capital punishment statutes enacted by the States
and the Federal Government,
notwithstanding my own deep moral reservations . . . has always rested on an
understanding that certain procedural safeguards, chief among them the
federal judiciary's power to reach and correct claims of constitutional
error on federal habeas review, would ensure that death sentences are fairly
Sawyer v. Whitley, ___ U.S. ___ (1992) (BLACKMUN, J., concurring in the
judgment). See also Herrera v. Collins, __ U.S. at __ (BLACKMUN, J.,
dissenting). In recent years, I have grown increasingly skeptical that "the
death penalty really can be imposed fairly and in accordance with the
requirements of the Eighth Amendment," given the now limited ability of the
federal courts to remedy constitutional errors. Sawyer, __ U.S. at __
(BLACKMUN, J., concurring in the judgment).
Federal courts are required by statute to entertain petitions from state
prisoners who allege that they are held "in violation of the Constitution or
the treaties of the United States." 28 U.S.C. 2254(a). Serious review of
these claims helps to ensure that government does not secure the penalty of
death by depriving a defendant of his or her constitutional rights. At the
time I voted with the majority to uphold the constitutionality of the death
penalty in Gregg v. Georgia, 428 U.S. 153, 227
<>(1976), federal courts
possessed much broader authority than they do today to address claims of
constitutional error on habeas review. In 1976, there were few procedural
barriers to the federal judiciary's review of a State's capital sentencing
scheme, or the fairness and reliability of a State's decision to impose
death in a particular case. Since then, however, the Court has "erected
unprecedented and unwarranted barriers" to the federal judiciary's review of
the constitutional claims of capital defendants. Sawyer, __ U.S. at __
(BLACKMUN, J., concurring in the judgment). See, e.g., Herrera v. Collins,
supra; Coleman v. Thompson, 501 U.S. __ (1991); McCleskey v. Zant, 499 U.S.
__ (1991); Keeney v. Tamayo-Reyes, __ U.S. __ (1992) (overruling Townsend v.
Sain, 372 U.S. 293
<>(1963), in part); Teague
v. Lane, 489 U.S. 288
<>(1989); Butler v.
McKellar, 494 U.S. 407
The Court's refusal last term to afford Leonel Torres Herrera an evidentiary
hearing, despite his colorable showing of actual innocence, demonstrates
just how far afield the Court has strayed from its statutorily and
constitutionally imposed obligations. See Herrera v. Collins, supra. In
Herrera, only a bare majority of this Court could bring itself to state
forthrightly that the execution of an actually innocent person violates the
Eighth Amendment. This concession was made only in the course of erecting
nearly insurmountable barriers to a defendant's ability to get a hearing on
a claim of actual innocence. Ibid. Certainly there will be individuals who
are actually innocent who will be unable to make a better showing than what
was made by Herrera without the benefit of an evidentiary hearing. 8 The
Court is unmoved by this dilemma, however; it prefers "finality" in death
sentences to reliable determinations of a capital defendant's guilt. Because
I no longer can state with any confidence that this Court is able to
reconcile the Eighth Amendment's competing constitutional commands, or that
the federal judiciary will provide meaningful oversight to the state courts
as they exercise their authority to inflict the penalty of death, I believe
that the death penalty, as currently administered, is unconstitutional.
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.
[ Footnote 1 ] As a member of the United States Court of Appeals, I voted to
enforce the death penalty, even as I stated publicly that I doubted its
moral, social, and constitutional legitimacy. See Feguer v. United States,
302 F.2d 214 (CA8), cert. denied, 371 U.S. 872
<>(1962); Pope v. United
States, 372 F.2d 710 (CA8 1967) (en banc), vacated and remanded, 392 U.S.
651  <>(1968); Maxwell v.
Bishop, 398 F.2d 138, 153-154 (CA8 1968), vacated and remanded, 398 U.S. 262
<>(1970). See Furman v.
Georgia, 408 U.S. 238, 405
[ Footnote 2 ] Because I conclude that no sentence of death may be
constitutionally imposed under our death penalty scheme, I do not address
Callins' individual claims of error. I note, though, that the Court has
stripped "state prisoners of virtually any meaningful federal review of the
constitutionality of their incarceration." Butler v. McKellar, 494 U.S. 407,
417  <>(1990) (BRENNAN, J.,
dissenting) (emphasis in original). Even if Callins had a legitimate claim
of constitutional error, this Court would be deaf to it on federal habeas
the state court's rejection of the constitutional challenge was so clearly
invalid under then-prevailing legal standards that the decision could not be
defended by any reasonable jurist.
Id. at 417-418 (emphasis in original). That a capital defendant facing
imminent execution is required to meet such a standard before the Court will
remedy constitutional violations is indefensible.
[ Footnote 3 ] See Sundby, The Lockett Paradox: Reconciling Guided
Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA L.Rev.
1147, 1162 (1991).
[ Footnote 4 ] The narrowing of death-eligible defendants into a smaller
subgroup coupled with the unbridled discretion to pick among them arguably
emphasizes, rather than ameliorates, the inherent arbitrariness of the death
penalty. S. Gillers, Deciding Who Dies, 129 U.Pa.L.Rev. 1, 27-28 (1980)
(arguing that the inherent arbitrariness of the death penalty is only
magnified by post-Furman statutes that allow the jury to choose among
similarly situated defendants).
[ Footnote 5 ] See Clemons v. Mississippi, 494 U.S. 738
<>(1990) (concluding that
appellate courts may engage in a reweighing of aggravating and mitigating
circumstances in order to "cure" error in capital sentencing); Blystone v.
Pennsylvania, 494 U.S. 299
<>(1990) (upholding a death
penalty statute mandating death where aggravating, but no mitigating,
circumstances are present, thus divesting the jury of its ability to make an
individualized determination that death is the appropriate punishment in a
particular case).
[ Footnote 6 ] See Johnson v. Texas, __ U.S. __ (1993) (affirming death
sentence even though the jurors were not allowed to give full mitigating
effect to the defendant's youth under the Texas death penalty statute);
Graham v. Collins, __ U.S. __ (1993). See also Saffle v. Parks, 494 U.S. 484
<>(1990) (upholding death
sentence where jurors were instructed to avoid "any influence of sympathy,"
because the claim was raised on federal habeas and a ruling for the
petitioner would constitute a "new rule" of constitutional law); Boyde v.
California, 494 U.S. 370
<>(1990) (upholding death
sentence where jurors reasonably may have believed that they could not
consider the defendant's mitigating evidence regarding his character and
background); Walton v. Arizona, 497 U.S. 639
<>(1990) (affirming
placement upon the defendant of the burden to establish mitigating
circumstances sufficient to call for leniency).
The Court has also refused to hold the death penalty unconstitutional per se
for juveniles, see Stanford v. Kentucky, 492 U.S. 361
<>(1989), and the mentally
retarded, see Penry v. Lynaugh, 492 U.S. 302
[ Footnote 7 ] See Arave v. Creech, __ U.S. __ (1993) (holding that an Idaho
statute, as interpreted by the Idaho Supreme Court, which authorizes the
death penalty for those murderers who have displayed "utter disregard for
human life," genuinely narrows the class of death-eligible defendants);
Lewis v. Jeffers, 497 U.S. 764
<>(1990) (affirming lenient
standard for the review of the constitutional adequacy of aggravating
[ Footnote 8 ] Even the most sophisticated death penalty schemes are unable
to prevent human error from condemning the innocent. Innocent persons have
been executed, see Bedau & Radelet, Miscarriages of Justice in Potentially
Capital Cases, 40 Stan.L.Rev. 21, 36, 173-179 (1987), perhaps recently, see
Herrera v. Collins, supra, and will continue to be executed under our death
penalty scheme. [ CALLINS v. JAMES, ___ U.S. ___ (1994) , 1]