"From this day forward, I shall no longer tinker with the machinery of death." wrote Supreme Court Justice Harry Blackmun in February in Callins vs. Collins, a death penalty case. "I feel morally and intellectually obligated to concede that the death penalty experiment has failed."
Blackmun's death penalty polemic, however, betrays a worrisome conflation of what the Constitution forbids and what a judge finds morally or personally distasteful. It epitomizes a triumph of the heart over the head, which the rule of law deplores.
Blackmuns opens his dissent with a grim description of the impending execution of Callins, a convicted murderer, worthy of a Dickensian novel: "Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specially for the purposes 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 extinction.
"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."
These poignant remarks are pertinent to dissuading legislatures from enacting death penalty laws, but they seem utterly irrelevant to determining their constitutionality. Whether the death penalty violates the Eighth Amendment ban on "cruel and unusual" punishment should not turn on whether those entrusted with the sentencing find the task personally "unenviable." Many law enforcement responsibilities fall into that latter category, but that does not render them constitutionally suspect.
The justice then turns from novelist to preacher. He dolefully declaims, "Even if we can feel confident that these actors [in the criminal justice system] will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy." Blackmun, however, unbosoms nary a clue as to how he ascertained the state of mind of "our collective conscience" - the possibilities range from a Gallup Poll to paranormal communication - or why hey styled it "uneasy," since the overwhelming majority favors the death penalty.
Moreover, putting these conundrums aside, the nation's collective conscience should be irrelevant to interpreting the Constitution. …