Three years and four months ago, Connecticut abolished the imposition of the harshest penalty – death – for any offense, no matter how severe. There was one caveat, however. Those who already were sentenced to death remained so. In what was pretty blatantly an attempt to assuage those who felt uncomfortable voting to give life to two of Connecticut’s most notorious killers, the abolition was prospective only, with the fight for full repeal left to the courts.
Two years after a full panel of the state Supreme Court heard oral arguments on whether every person on death row should be spared death, it issued a contentious ruling [pdf] declaring, in the words of Justice Blackmun, that this State would no longer tinker with the machinery of death.
Everything that I can say about repeal I’ve said before. I have no flowery words, no eloquent statements about our humanity, no odes to civilized existence. The horrible deed of murder in cold blood that we’ve been engaging in for 400 years is done. There is a grim memory of those who have been executed, right or wrongly, and those who have been killed at the hands of the executed.
But that is not to say that we must not remind ourselves that this was the correct decision – the only decision – to be made as we enter the middle half of the second decade of this century. For that, I turn to Justice Blackmun’s infamous dissent in Callins v. Collins, from which the title of this post comes:
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.
…
On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow.
Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well.
Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U. S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.
and thus
From this day forward, I no longer shall tinker with the machinery of death.
So say we all.