If you spend any time at all studying the death penalty in America today you eventually come across an immutable truth: No one who digs deeply into these grim cases ever seems to evolve from being a staunch opponent of capital punishment into being a fervent supporter of the practice. The movement, over the past 40 years anyway, has almost always been in the opposite direction: The closer one gets to capital punishment, the more dubious it appears to be.Justice Harry Blackmun was also once a supporter, but he eventually decided that it was simply impossible to guarantee the fairness of death penalty trials, writing, "I will no longer tinker with the machinery of death." In 1994 he wrote, in Callins vs. Collins,
This has been particularly true of Supreme Court justices since the death penalty was resurrected in America in 1976: The closer these esteemed jurists have gotten to "the machinery of death," the more flawed convictions and death sentences they were forced to review, the more racial inequality they saw in its application—and the more likely they were to recoil from the arbitrary imposition of capital punishment in those states that still practiced it.
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.As I was just explaining to my students, medieval ideas about crime and punishment were dominated by the understanding that true justice belongs to God. We on earth can never see anyone's heart well enough to find the whole truth of anything. Our mission is not to do justice in any profound sense, but to preserve order and keep society functioning. Medieval courts pushed people toward compromise even in cases of murder and rape, with execution generally reserved for the sort of rootless riffraff that hung around the margins. Judges sometimes admitted that they did not know if accused thieves were really guilty, but they thought it was necessary to hang a few people from time to time to keep those unstable elements under control. Execution had a random quality, like lightning, and like lightning it inspired awe. To this random cruelty they added random mercy as well; new kings often began their reigns by pardoning everyone in the jails awaiting trial, and many miracles of medieval saints took the form of freeing prisoners from chains or causing the hangman's rope to snap. And what did it matter, really, when God would sort it all out after death?
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, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. 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.
When I read the arguments of contemporary death penalty proponents, I see the same logic at work. In Antonin Scalia's view, the job of the courts is not to search exhaustively into matters of guilt and innocence. Their job is to uphold the majesty of the state, and beyond the state of God. Too much quibbling about the details of trial procedure only undermines the awe we ought to feel toward authority. To inspire awe, justice must be delivered with finality, the bang of the gavel ringing out like the bells tolling doomsday.
Those of us who dislike such reverence for authority, and doubt that God's judgment means anything like the simple sorting of sinners from the saved, find these arguments not just unconvincing but bewildering. To us getting justice right matters more than anything else. And since American justice has failed a hundred thousand times to deliver the right verdict, we are not willing to see anyone killed on the basis of what our courts, prosecutors and police are pleased to call "justice."