September 4, 2014

Kevin Gourlay

Canada abolished the death penalty in Canada in 1976, having last executed a person over 50 years ago (1962).  Virtually all of the developed world has done the same.  The famous exception is the United States which continues to execute people, trailing only China, Iran, Iraq, and Saudi Arabia in its rates of execution.

18 states have ended the practice through different means: court rulings, legislation, or gubernatorial decree.  Others continue to execute with varying degrees of enthusiasm.  While the practice may be slowing in much of the country, there seems to be little will to end it on a nationwide basis.

The issue returned to the headlines this week with the exoneration of North Carolina death row resident Henry Lee McCollum.  McCollum had spent 30 years in prison after having been wrongfully convicted, along with 3 other men including his half-brother, of the 1983 rape and murder of 11-year-old Sabrina Buie.  DNA recently showed Roscoe Artis, a man already in prison for the rape and murder of another girl killed a month after Buie, had in fact been Buie’s killer as well.

Sadly, the exoneration of a man almost killed by the state is hardly enough to generate national headlines.  What makes the case noteworthy is that Supreme Court Justice Antonin Scalia had used the case as an example of why the death penalty should be maintained.  Justice Scalia was responding to the dissenting opinion of Justice Harry Blackmun (famous as the author of Roe v. Wade).  Shortly before his 1994 retirement, Justice Blackmun had the opportunity to speak out against the death penalty in Callins v. Collins, writing passionately:

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 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. 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 (1978).

Responding with his typical pernicious smugness, Justice Scalia wrote:

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. How enviable a quiet death by lethal injection compared with that!

McCollum was the example to which Scalia referred.  The “enviable quiet death” that Justice Scalia celebrated with an exclamation mark would have been that of the innocent McCollum.    I expect Justice Scalia would say that his comment was assuming McCollum’s guilt and he wasn’t specifically deciding that case but surely that misses the point.

It’s unlikely that this will cause Justice Scalia to reflect on his views and it’s almost certain that he will do not do so publicly (though he gladly comments on other matters publicly when he believes it will help burnish his image).  Still, one hopes that it will cause others pause in reflecting on the issue.


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