The Agony of a Moral Exhibitionist

February 28, 1994|By GEORGE F. WILL

WASHINGTON — Washington. -- Justice Harry Blackmun, again confusing autobiography with constitutional reasoning, has dissented from the Supreme Court's refusal to review a Texas capital-punishment conviction, announcing that he is too personally distressed ever again to sanction the death penalty, no matter what.

His 22-page outburst, refuted by Justice Antonin Scalia in four scalding paragraphs, uses the results of the court's recent rulings about how capital punishment can be constitutional as an excuse for declaring capital punishment unconstitutional.

Opponents of capital punishment have two problems: The country wants it and the Constitution assumes it. The Fifth Amendment contains provisions concerning capital punishment. That, along with 18th-century practices, proves the Constitution's framers did not consider capital punishment ''cruel and unusual.'' But in 1972 the court's then liberal majority effectively declared the capital-punishment laws of all 50 states unconstitutional.

In the 5-4 ruling two justices said America's ''evolving standards of decency'' had brought capital punishment under the proscription of ''cruel and unusual'' punishments. The other three majority justices argued only that capital punishment was cruel and unusual because it was then administered in a manner they considered capricious.

Thirty-seven states promptly disproved the ''evolving standards'' theory by passing capital-punishment laws crafted to satisfy the court's criteria. Those criteria have been fine-tuned incessantly since the court affirmed the constitutionality of a death sentence in 1976.

The trouble is that the court has produced conflicting criteria that, in combination, defeat the attempt to eliminate what the court considers capricious administration of the death penalty. The court has said juries' discretion must be severely confined by rules -- by adjectives, actually -- about the sorts of crimes (''especially heinous, atrocious or cruel'' in Florida, ''wantonly vile, horrible or inhumane'' in Georgia) for which death can be the penalty. But simultaneously the court has said juries must be unconstrained when considering factors that conceivably could make capital punishment seem inappropriate in a particular case.

Taken together, these rules are a recipe for unpredictability. So Justice Blackmun now says that because the court has concocted self-defeating rules regarding capital punishment, capital punishment must be inherently unconstitutional. He says the tension between the court's insistence on close attention to nuances of particular cases -- and its insistence on consistency -- conflicts with ''American standards of decent treatment'' that have ''evolved.''

Justice Scalia notes that Mr. Blackmun's dissent is full of references to his feelings but not to constitutional texts and traditions. Mr. Scalia agrees with Justice Blackmun that the court has attached to capital punishment incompatible commands -- discretion to impose death must be closely confined, but discretion not to impose it must be unlimited. But because both commands were formulated by the court ''without benefit of any textual or historical support,'' Justice Scalia says the solution is to abandon one, or both. Instead, Justice Blackmun uses the court-created confusion as an excuse to, in effect, amend the Constitution.

Mr. Blackmun's dissent begins by mournfully imagining the Texas murderer being executed by lethal injection. Mr. Scalia focuses instead on the murderer's victim ''ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a PTC tavern'' the murderer was robbing.

Mr. Scalia also notes that the lachrymose Justice Blackmun did not attach his capital-punishment declaration to a case now pending before the court, the case of an 11-year-old girl raped by four men who then killed her by stuffing her panties down her throat. Says Justice Scalia, the public's judgment that death is a proportionate penalty for such crimes should not be blocked by the court's creation of extra-constitutional contradictions.

''Convictions in opposition to the death penalty,'' says Mr. Scalia, ''are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority's views upon the people.''

Justice Blackmun, 85, has become a moral exhibitionist, telling ''Nightline'' and law students and others about the ''agony'' of decision-making. In his concurring opinion in the court's 5-4 ruling in the summer of 1992 sustaining the Roe v. Wade abortion ruling, he assisted Bill Clinton's presidential campaign by warning that the next court appointee could produce an anti-Roe majority.

Furthermore, by saying that the controversy over Roe involved a choice between ''two worlds,'' one virtuous, the other not, he obliquely suggested that the Senate should make support for Roe a condition of confirmation for his successor. Surely it is time for him to take his anti-constitutional egotism into retirement.

George F. Will is a syndicated columnist.

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