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Justice Blackmun questions capital punishment
JUSTICE BLACKMUN WARNINGS ON DEATH PENALTY
by Edward Spannaus
June 29 (EIRNS)--
Associate Supreme Court Justice Harry Blackmun warned on June 22 that he may
no longer be able to support the death penalty, because the U.S. Supreme Court
is eliminating the ability of the federal courts to protect the constitutional
rights of Death Row inmates.
By the end of the week, rumors were circulating in Washington that the
83-year-old Blackmun, the oldest member of the high court, was about to
resign. However, press reports of these rumors fail to connect one of the
most compelling pieces of evidence pointing this way: Blackmun's attacks on
the direction of the Supreme Court's death penalty rulings. Blackmun's attacks
bear a certain resemblance to Thurgood Marshall's swan song a year ago, upon
his own resignation.
Blackmun wrote, in his concurring opinion in the {Sawyer} case, that he
doubts that the death penalty can be fairly applied any longer, because of the
Supreme Court's constriction of the ability of the federal courts to remedy
constitutional errors via {habeas corpus} review. Blackmun said that he had
always had a ``personal distaste'' for the death penalty, and he doubted that
it performs any effective deterrent, yet he thought it was a matter to be
resolved by state legislatures.
His ability to enforce the death penalty, wrote Blackmun, ``has always
rested on an understanding that certain procedural safeguards, chief among
them the federal judiciary's power to reach and correct claims of
constitutional error on federal {habeas} review, would ensure that death
penalty cases are fairly imposed. Today, more than 20 years later, I wonder
what is left of that premise underlying my acceptance of the death penalty.''
By refusing to consider constitutional violations unless a prisoner can
prove ``actual innocence'' to the court's satisfaction, said Blackmun, ``the
Court undermines the very legitimacy of capital punishment itself.''
- `Perverse Double Standard' -
In another concurring opinion in the {Sawyer} case, Justice John Paul
Stevens attacked Chief Justice William Rehnquist's reasoning as creating a
more difficult standard of proof for capital cases than non-capital cases.
``The Court's ruling creates a perverse double standard,'' wrote Stevens.
``While a defendant raising defaulted claims in a non-capital case must show
that constitutional error `probably resulted' in a miscarriage of justice, a
capital defendant must present `clear and convincing evidence' that no
reasonable juror would find him eligible for the death penalty. It is
heartlessly perverse to impose a more stringent standard of proof to avoid a
miscarriage of justice in a capital case than a noncapital case.''
One of the remarkable features of the strongly worded separate opinions
written by Blackmun for himself, and Stevens for himself and Justices Blackmun
and Sandra Day O'Connor, is that they are {concurring,} not dissenting,
opinions from Justices who generally support the death penalty.
- `Bloody Bill' Rehnquist -
In the {Sawyer} case, Chief Justice Rehnquist, writing for the court's
majority, again narrowed the rights which a Death Row inmate has to bring a
{habeas} petition into federal court. In doing so, Rehnquist adopted the
stringent legal standards applied by the federal circuits in the deep South
(the 5th and 11th Circuits), covering states from Florida to Texas.
In this decision, Rehnquist explicitly further extended the barbaric line
of reasoning shown in the earlier cases involving Warren McClesky and Roger
Coleman, among others. Rehnquist says that a constitutional violation is of
no concern, unless the prisoner can show that he is ``actually innocent'' of
the offense charged, and the federal courts should ignore the constitutional
violation and refuse to entertain a {habeas} petition. Unless the prisoner
can show that, except for the constitutional error, {no} reasonable juror
could have found him guilty, the courts will pay no heed to the constitutional
error.
The argument made by Blackmun, Stevens et al., is that ``a fundamental
miscarriage of justice occurs whenever a conviction or sentence is secured in
violation of a federal constitutional right.'' Since 1986, says Blackmun, the
Supreme Court has shifted the focus of {habeas} review of certain categories
of cases--those it calls ``procedurally defaulted '' (i.e., one day late), or
``successive'' or ``abusive'' (i.e., bringing a second {habeas} petition when
new evidence is discovered).
Thus, for example, even if the prisoner can prove that the prosecution
suppressed exculpatory evidence, or that witnesses lied, or that his own
confession was coerced, he will not get a hearing unless he can prove to the
satisfaction of the federal court that he is ``actually innocent.'' Legally,
this is an almost impossible standard to meet (since there is almost always
some contradictory or circumstantial evidence), so the sentence will stand and
he can be executed--notwithstanding the constitutional violation.
The ``actual innocence'' standard also unconstitutionally shifts the burden
of proof. In a criminal case, the burden of proof is on the {government} to
prove that a defendant is guilty beyond a reasonable doubt, not on the
defendant to prove that he is innocent beyond {all} conceivable doubt.
The Supreme Court has not yet decided pending cases on the issue of whether
``actual innocence'' itself is a bar to execution. (Such a case is before the
court and will be argued next fall.) But the June 22 ruling sets a standard
which is almost impossible for any prisoner to meet, and will result in many
more executions.
reprinted with permission from
THE NEW FEDERALIST
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