Last week, Justice Harry Blackmun announced in a solitary dissent in a capital punishment case that he would never again vote to uphold a death sentence. "I conclude that no sentence of death may be constitutionally imposed."
That is quite a change for Justice Blackmun, as his critics have been quick to point out. He voted to uphold the death penalty in 1972, when the court by a 5-4 vote overturned it as it then existed in all states that practiced capital punishment.
But anyone who has paid any attention to Justice Blackmun's career in the past two decades saw this coming. He has opposed specific executions that the Supreme Court upheld, using language that indicated he might be reassessing his basic philosophy on the issue. Then he said so flatly in a televised interview last year.
Much of what he said last week seemed to be based on personal morality rather than constitutional theory. Some criticism of him focused only on that. But this moral view is not new for him -- nor is it the basis of his change of mind on the issue of constitutionality.
In 1972 in voting for capital punishment's constitutionality, he commented at length, and eloquently, on his personal disapproval of capital punishment. He noted that his Minnesota had not executed anyone since 1906. But that didn't mean to him that states could never execute, since history and Supreme Court precedents, including some then very recent ones, said there was no constitutional ban to fairly imposed death sentences.
What has changed in his view is that, after that 1972 decision, most states rewrote their capital sentencing laws in a way designed to ensure fairness and the Supreme Court upheld them -- yet fairness has not been achieved. No one contends that it has. No one, not even the death penalty's most supportive justice, Antonin Scalia. On this Justices Blackmun and Scalia agree: The court has established two contradictory principles. One, the death penalty can be given only in certain very specific situations, but two, it doesn't have to be given in those very specific situations.
As a result, the death penalty has become unfair, almost random, even capricious -- just the weaknesses that convinced the court in 1972 to overturn it. And just the sort of "unusual punishment" that the writers of the Eighth Amendment to the Constitution expected it to prevent.
Justice Blackmun has changed his mind. Nothing wrong with that. He's in good company. (See Salmagundi below.) The facts have also changed. The evidence is in. States have had 20 years to prove the death penalty can be applied fairly and thus constitutionally, and they haven't. They haven't, because it can't be done. This is Justice Blackmun's message, and he's right.