justice blackmun...

in my capital punishment class today we discussed McCleskey v. Kemp, 481 U.S. 279 (1987), the opinion by justice powell in which the statistical results of the Baldus study showing significant racial disparity among black and white defendants with respect to the way the death penalty is sought were not found to be grounds to overturn a death penalty conviction of a black defendant.

the notes in the casebook mentioned that justice powell later said that mccleskey was a case that he wished he had decided otherwise. and that got me thinking about my favorite opinion in a capital punishment case...

it's justice blackmun's dissent from the Court's denial of certiorari in Callins v. Collins, 510 U.S. 1141 (1994). his words give me chills, break my heart, make me forget to breathe...

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. 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, 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.

i think that just about says all there is to say.