The whole exercise is well-beneath a civilized society -- regardless of whether some in our number still feel the need to bray at the full Moon, late into the nights. [The woman condemned in Tennessee this week remains in an agonizing fugue state, lingering between life and death -- having never regained consciousness. Severe brain damage is almost certain to have occurred.]
So here, once again (I've posted this dissent before, here), is what I regard as the best reasoning -- from a dissent Justice Harry Blackmun penned in Callins v. Collins, 114 S.Ct. 1127, 1128-38 (1994), now over 33 years ago:
". . .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, see, for example, Arave v. Creech, (1993), relevant mitigating evidence to be disregarded, see, for example, Johnson v. Texas, (1993), and vital judicial review to be blocked, see, for example, Coleman v. Thompson, (1991). 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.
It is the decision to sentence a defendant to death — not merely the decision to make a defendant eligible for death — that may not be arbitrary. While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught otherwise. It seems that the decision whether a human being should live or die is so inherently subjective — rife with all of life’s understandings, experiences, prejudices, and passion — that it inevitably defies the rationality and consistency required by the Constitution.
Perhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital-sentencing scheme. I am not optimistic that such a day will come. 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." Godfrey v. Georgia, 446 U.S. 420, 442 (1980) (Marshall, J., concurring in the judgment). I may not live to see that day, but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent. . . ."
Onward, in the morning, to catch a jet -- into the high Rockies, to spend another precious week with my now 92 year old Alzheimer's suffering mom. These gloriously fiery Fall Aspen colors are what she's spent her whole life working, and saving for -- and now she shall have it, whenever she's able. Smile -- life. . . not the cold, mum, raw maw of death, is the point. . . of life, afterall.
Largely off-grid for a week. नमस्ते
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