Justice Harry Blackmun was tired. It was 1993 and he was a few short months from announcing his retirement from the Supreme Court of the United States. Justice Blackmun may always be identified with the abortion decision of Roe v. Wade, but in the winter of his tenure with SCOTUS it was death that was on his mind.
Justice Blackmun dissented when the death penalty originally had been declared unconstitutional in 1972, and played a central role in its rise from the ash heap of constitutional history four years later. He had been in the majority then, when a trinity of cases decided that Texas, Georgia and Florida had sufficiently mended the arbitrariness dooming their previous death penalty schemes. By 1993, however, Blackmun had witnessed the failures these schemes had wrought. It was fitting the vehicle he chose was a Texas death penalty case on which SCOTUS denied writ. Blackmun’s dissent in Callins v.Collins began:
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.
On Thursday, November 26, 2014 Judge Tom Price of the Texas Court of Criminal Appeals, issued a dissenting opinion in a Motion to Stay Execution in Ex parte: Panetti. Panetti is a case study in some of the many wrongs in Texas’ application of the death penalty, but that is not the point here. In dissent, Judge Price, in the absence of a better description,“Pulled a Blackmun”:
Having spent the last forty years as a judge for the State of Texas, of which the last eighteen years have been as a judge on this Court, I have given a substantial amount of consideration to the propriety of the death penalty as a form of punishment for those who commit capital murder, and I now believe that it should be abolished.
Judge Price designated his dissent for publication, while both the per curium opinion denying Panetti relief and Judge Elsa Alcala's dissent were non-published. In other words, Judge Price meant for his condemnation of the death penalty to be perpetuated for citation by lawyers attacking it in the future.
I should feel invigorated. Those of us who rage privately while shouting into the void of the criminal justice system about illusory protections from the death penalty should rejoice at this acknowledgment, right? Sorry. Instead it is anger I am feeling. Judge Price’s public condemnation of our death penalty scheme comes just a short month before his retirement.
I am sure there are legitimate reasons for Judge Price’s late public acknowledgement of the failure a scheme dishing out state sponsored death: He is elected. He has a responsibility to the CCA. He has a responsibility as a jurist to follow the law. I get all of it, but having watched up close the machinery of death work its capriciousness, it just angers me. Am I the only one?
Again, Justice Blackmun in dissent from Callins:
The basic question--does the system accurately and consistently determine which defendants ‘deserve’ to die?--cannot be answered in the affirmative…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.
Harry Blackmun died five years after his words were published to a world that today still believes in the machinery of death. Judge Price can be a public, vocal critic of the death penalty in his retirement. He has had ringside seat both on the trial court and appellate bench for what Justice Blackmun described in Callins as the failure of the "[d]eath penalty experiment." Here’s hoping in the fall and winter of Judge Price's life he shouts into a what I fervently hope will no longer will be a void.