Scalia’s big death penalty argument implodes

The dissent of Supreme Court Justice Harry Blackmun in a 1994 Texas death penalty case:

From this day forward, I no longer shall tinker with the machinery of death. I feel…obligated simply to concede that the death penalty experiment has failed.

Fair enough. But why?

Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this…challenge, the death penalty remains fraught with arbitrariness, discrimination…and mistake…


…no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies… […] 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.’

As usual Justice Antonin Scalia was more interested in taking on his colleagues than taking on the argument. He mocked the bleedingheart Blackmun with this:

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 […] for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

So the dramatics of the argument between Blackmun and Scalia can be reduced to: ‘A flawed system cannot fairly apply a death penalty’ and ‘Homicidal maniacs are worse!’

We move ahead to September of last year. And to this stunning but little noticed bit of breaking news:

A North Carolina death row inmate exonerated by DNA evidence on Tuesday was once held up by Supreme Court Justice Antonin Scalia as an example of someone who deserved to die….

“For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat,” Scalia wrote in Callins v. Collins. “How enviable a quiet death by lethal injection compared with that!”

He was referring to Henry Lee McCollum, who at the time had already been on death row for 12 years. McCollum’s conviction was overturned on Tuesday when DNA evidence implicated another man in the case.

McCollum had been on death row for almost 30 years.

In giving short shrift to Blackmun’s legal argument and instead focusing on the horrors of homicide, Scalia set himself up for embarrassment. In utterly predictable fashion, the system found that McCollum 1.) had committed murder 2.) deserved to die. He was as much guilty of a horrible crime as any other innocent man – for example me, or you, or a contemptuous Supreme Court Justice.

Blackmun later responded to Scalia, writing of the flaws in the case as well as McCollum’s mental capacity.

“That our system of capital punishment would single out Buddy McCollum to die for this brutal crime only confirms my conclusion that the death penalty experiment has failed,” he wrote. “Our system of capital punishment simply does not accurately and consistently determine which defendants most ‘deserve’ to die.”

Now can the arguments over the death penalty begin to move forward? Of less importance: Can Scalia admit that Blackmun was ultimately right? Oh I certainly hope so. Otherwise I’d have to conclude the esteemed jurist is something of a hack.