July 9, 2001

Death-Penalty Dissenters

By BOB HERBERT

Harry A. Blackmun was 85 years old and near the end of his tenure on the Supreme Court when he declared in 1994 that he could no longer support the imposition of the death penalty.

This was especially noteworthy because Justice Blackmun was seen as a staunch "law and order" judge when he was appointed to the court by Richard Nixon in 1970, and he played a significant role in the restoration of capital punishment in the U.S. in 1976.

But he was a thoughtful man. And what turned him around on the death penalty, after decades of trying to ensure that it was imposed fairly, was his realization that it could never be imposed fairly.

In a solitary dissent from the court's refusal to stay an execution in Texas, Justice Blackmun wrote in February 1994, "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."

He said that he and a majority of his colleagues on the court had struggled unsuccessfully for more than 20 years to bring an acceptable level of fairness to the system of capital punishment. But despite all good-faith efforts, he said, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed."

Justice Blackmun could no longer bring himself to roll the dice with a person's life at stake. He would no longer participate in a system that he described as "fraught with arbitrariness, discrimination, caprice and mistake."

"From this day forward," he said, "I no longer shall tinker with the machinery of death."

Justice Blackmun died in 1999.

In January 2000, another unlikely individual stepped forward with concerns about the viability of capital punishment. Gov. George H. Ryan of Illinois, a pro-death-penalty Republican, imposed a moratorium on executions in Illinois because of his state's "shameful record of convicting innocent people and putting them on death row."

More than a dozen men who had been sentenced to death in Illinois since 1977 eventually were found to have been innocent and were freed.

Anthony Porter was one, and he came frighteningly close to dying for a crime he hadn't committed. Mr. Porter was convicted of murdering a young couple in a park in Chicago. He spent 16 years on death row and came within 48 hours of actually being executed. He was released from prison in February 1999, after a group of Northwestern University students, working with their journalism professor, uncovered evidence that showed he was innocent.

Echoing Justice Blackmun, Governor Ryan said, "I cannot support a system which, in its administration, has proven so fraught with error, and has come so close to the ultimate nightmare, the state's taking of innocent life."

The latest voice to be heard on this critical issue was that of Supreme Court Justice Sandra Day O'Connor, who is also a supporter of the death penalty. "If statistics are any indication," said Justice O'Connor, in an address last week to a gathering of lawyers in Minnesota, "the system may well be allowing some innocent defendants to be executed."

With that stunningly understated observation, Justice O'Connor became the second pro-death-penalty Supreme Court justice to raise the horrifying specter of innocents being delivered to the death chambers. "Perhaps," she said, "it's time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used."

Justice Blackmun would have called that tinkering. He did not believe the courts could develop procedures that would provide "consistency, fairness and reliability" in the administration of the death penalty.

He was more optimistic, he said, that the Supreme Court would eventually have no choice but to declare the death penalty a failure and abandon it altogether. "I may not live to see that day," he said, "but I have faith that eventually it will arrive."

He concluded his opinion on the 1994 case as follows: "The path the court has chosen lessens us all. I dissent."

© Copyright 2001 The New York Times Company