The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_7054/93_7054.za1

Text File | 1994-02-22 | 36.0 KB | 714 lines

SUPREME COURT OF THE UNITED STATES
--------
No. 93-7054
--------
BRUCE EDWIN CALLINS, PETITIONER v. JAMES
A. COLLINS, DIRECTOR, TEXAS DEPARTMENT
 OF CRIMINAL JUSTICE, INSTITUTIONAL
 DIVISION
on petition for writ of certiorari to the united
states court of appeals for the fifth circuit
[February 22, 1994]

  Justice Blackmun, dissenting.
  On February 23, 1994, at approximately 1:00 a.m.,
Bruce Edwin Callins will be executed by the State of
Texas.  Intravenous tubes attached to his arms will
carry the instrument of death, a toxic fluid designed
specifically for the purpose of killing human beings.  The
witnesses, standing a few feet away, will behold Callins,
no longer a defendant, an appellant, or a petitioner, but
a man, strapped to a gurney, and seconds away from
extinction.
  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 repre-
sented 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.
  But even if we can feel confident that these actors will
fulfill their roles to the best of their human ability, our
collective conscience will remain uneasy.  Twenty years
have passed since this Court declared that the death
penalty must be imposed fairly, and with reasonable
consistency, or not at all, see Furman v. Georgia, 408
U. S. 238 (1972), and, despite the effort of the States
and courts to devise legal formulas and procedural rules
to meet this daunting challenge, the death penalty re-
mains fraught with arbitrariness, discrimination, caprice,
and mistake.  This is not to say that the problems with
the death penalty today are identical to those that were
present 20 years ago.  Rather, the problems that were
pursued down one hole with procedural rules and verbal
formulas have come to the surface somewhere else, just
as virulent and pernicious as they were in their original
form.  Experience has taught us that the constitutional
goal of eliminating arbitrariness and discrimination from
the administration of death, see Furman v. Georgia,
supra, can never be achieved without compromising an
equally essential component of fundamental fair-
ness-individualized sentencing.  See Lockett v. Ohio,
438 U. S. 586 (1978).
  It is tempting, when faced with conflicting constitu-
tional commands, to sacrifice one for the other or to
assume that an acceptable balance between them
already has been struck.  In the context of the death
penalty, however, such jurisprudential maneuvers are
wholly inappropriate.  The death penalty must be
imposed -fairly, and with reasonable consistency, or not
at all.-  Eddings v. Oklahoma, 455 U. S. 104, 112
(1982).
  To be fair, a capital sentencing scheme must treat
each person convicted of a capital offense with that
-degree of respect due the uniqueness of the individual.-
Lockett v. Ohio, 438 U. S., at 605 (plurality opinion).
That means affording the sentencer the power and
discretion to grant mercy in a particular case, and
providing avenues for the consideration of any and all
relevant mitigating evidence that would justify a
sentence less than death.  Reasonable consistency, on
the other hand, requires that the death penalty be
inflicted evenhandedly, in accordance with reason and
objective standards, rather than by whim, caprice, or
prejudice.  Finally, because human error is inevitable,
and because our criminal justice system is less than
perfect, searching appellate review of death sentences
and their underlying convictions is a prerequisite to a
constitutional death penalty scheme.
  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 de-
mands, 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 deregu-
late the entire enterprise, replacing, it would seem,
substantive constitutional requirements with mere
aesthetics, and abdicating its statutorily and constitu-
tionally imposed duty to provide meaningful judicial
oversight to the administration of death by the States.
  From this day forward, I no longer shall tinker with
the machinery of death.  For more than 20 years I have
endeavored-indeed, I have struggled-along with a
majority of this Court, to develop procedural and
substantive rules that would lend more than the mere
appearance of fairness to the death penalty endeavor.
Rather than continue to coddle the Court's delusion that
the desired level of fairness has been achieved and the
need for regulation eviscerated, I feel morally and
intellectually obligated simply to concede that the death
penalty experiment has failed.  It is virtually self-
evident to me now that no combination of procedural
rules or substantive regulations ever can save the death
penalty from its inherent constitutional deficiencies.  The
basic question-does the system accurately and consis-
tently determine which defendants -deserve- to
die?-cannot be answered in the affirmative.  It is not
simply that this Court has allowed vague aggravating
circumstances to be employed, see, e.g., Arave v. Creech,
___ U. S. ___ (1993), relevant mitigating evidence to be
disregarded, see, e.g., Johnson v. Texas, ___ U. S. ___
(1993), and vital judicial review to be blocked, see, e.g.,
Coleman v. Thompson, 501 U. S. ___ (1991).  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.

                            I
  In 1971, in an opinion which has proved partly
prophetic, the second Justice Harlan, writing for the
Court, observed:
-Those who have come to grips with the hard task
of actually attempting to draft means of channeling
capital sentencing discretion have confirmed the
lesson taught by the history recounted above.  To
identify before the fact those characteristics of
criminal homicides and their perpetrators which call
for the death penalty, and to express these charac-
teristics in language which can be fairly understood
and applied by the sentencing authority, appear to
be tasks which are beyond present human ability
. . . .  For a court to attempt to catalog the appro-
priate factors in this elusive area could inhibit
rather than expand the scope of consideration, for no
list of circumstances would ever be really complete.-
McGautha v. California, 402 U. S. 183, 204, 208
(1971).
In McGautha, the petitioner argued that a statute which
left the penalty of death entirely in the jury's discretion,
without any standards to govern its imposition, violated
the Fourteenth Amendment.  Although the Court did not
deny that serious risks were associated with a sen-
tencer's unbounded discretion, the Court found no
remedy in the Constitution for the inevitable failings of
human judgment.
  A year later, the Court reversed its course completely
in Furman v. Georgia, 408 U. S. 238 (1972) (per curiam,
with each of the nine Justices writing separately).  The
concurring Justices argued that the glaring inequities in
the administration of death, the standardless discretion
wielded by judges and juries, and the pervasive racial
and economic discrimination, rendered the death penalty,
at least as administered, -cruel and unusual- within the
meaning of the Eighth Amendment.  Justice White
explained that, out of the hundreds of people convicted
of murder every year, only a handful were sent to their
deaths, and that there was -no meaningful basis for
distinguishing the few cases in which [the death penalty]
is imposed from the many cases in which it is not.-  408
U. S., at 313.  If any discernible basis could be identi-
fied for the selection of those few who were chosen to
die, it was -the constitutionally impermissible basis of
race.-  Id., at 310 (Stewart, J., concurring).
  I dissented in Furman.  Despite my intellectual,
moral, and personal objections to the death penalty, I
refrained from joining the majority because I found
objectionable the Court's abrupt change of position in
the single year that had passed since McGautha.  While
I agreed that the Eighth Amendment's prohibition
against cruel and unusual punishments -`may acquire
meaning as public opinion becomes enlightened by a
humane justice,'- 408 U. S., at 409, quoting Weems v.
United States, 217 U. S. 349, 378 (1910), I objected to
the -suddenness of the Court's perception of progress in
the human attitude since decisions of only a short while
ago.-  408 U. S., at 410.  Four years after Furman was
decided, I concurred in the judgment in Gregg v.
Georgia, 428 U. S. 153 (1976), and its companion cases
which upheld death sentences rendered under statutes
passed after Furman was decided.  See Proffitt v.
Florida, 428 U. S. 242, 261 (1976), and Jurek v. Texas,
428 U. S. 262, 279 (1976).  Cf. Woodson v. North
Carolina, 428 U. S. 280, 307 (1976), and Roberts v.
Louisiana, 428 U. S. 325, 363 (1976).

                            A
  There is little doubt now that Furman's essential
holding was correct.  Although most of the public seems
to desire, and the Constitution appears to permit, the
penalty of death, it surely is beyond dispute that if the
death penalty cannot be administered consistently and
rationally, it may not be administered at all.  Eddings
v. Oklahoma, 455 U. S., at 112.  I never have quarreled
with this principle; in my mind, the real meaning of
Furman's diverse concurring opinions did not emerge
until some years after Furman was decided.  See Gregg
v. Georgia, 428 U. S., at 189 (opinion of Stewart, Powell,
and Stevens, JJ.) (-Furman mandates that where
discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life
should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk
of wholly arbitrary and capricious action-).  Since Gregg,
I faithfully have adhered to the Furman holding and
have come to believe that it is indispensable to the
Court's Eighth Amendment jurisprudence.
  Delivering on the Furman promise, however, has
proved to be another matter.  Furman aspired to
eliminate the vestiges of racism and the effects of
poverty in capital sentencing; it deplored the -wanton-
and -random- infliction of death by a government with
constitutionally limited power.  Furman demanded that
the sentencer's discretion be directed and limited by
procedural rules and objective standards in order to
minimize the risk of arbitrary and capricious sentences
of death.
  In the years following Furman, serious efforts were
made to comply with its mandate.  State legislatures
and appellate courts struggled to provide judges and
juries with sensible and objective guidelines for deter-
mining who should live and who should die.  Some
States attempted to define who is -deserving- of the
death penalty through the use of carefully chosen
adjectives, reserving the death penalty for those who
commit crimes that are -especially heinous, atrocious, or
cruel,- see Fla. Stat. 921.141(5)(h) (Supp. 1976), or
-wantonly vile, horrible or inhuman,- see Ga. Code Ann.
27-2534.1(b)(7) (1978).  Other States enacted manda-
tory death penalty statutes, reading Furman as an
invitation to eliminate sentencer discretion altogether.
See, e.g., N.C. Gen. Stat. 14-17 (Cum. Supp. 1975).
But see Woodson v. North Carolina, 428 U. S. 280
(1976) (invalidating mandatory death penalty statutes).
Still other States specified aggravating and mitigating
factors that were to be considered by the sentencer and
weighed against one another in a calculated and rational
manner.  See, e.g., Ga. Code. Ann. 17-10-30(c) (1982);
cf. Tex. Code Crim. Proc. Ann., Art. 37.071(c)-(e) (Vernon
1981 and Supp. 1989) (identifying -special issues- to be
considered by the sentencer when determining the
appropriate sentence).
  Unfortunately, all this experimentation and ingenuity
yielded little of what Furman demanded.  It soon
became apparent that discretion could not be eliminated
from capital sentencing without threatening the funda-
mental fairness due a defendant when life is at stake.
Just as contemporary society was no longer tolerant of
the random or discriminatory infliction of the penalty of
death, see Furman, supra, evolving standards of decency
required due consideration of the uniqueness of each
individual defendant when imposing society's ultimate
penalty.  See Woodson, 428 U. S., at 301 (opinion of
Stewart, Powell, and Stevens, JJ.) referring to Trop v.
Dulles, 356 U. S. 86, 101 (1958) (plurality opinion).
  This development in the American conscience would
have presented no constitutional dilemma if fairness to
the individual could be achieved without sacrificing the
consistency and rationality promised in Furman.  But
over the past two decades, efforts to balance these
competing constitutional commands have been to no
avail.  Experience has shown that the consistency and
rationality promised in Furman are inversely related to
the fairness owed the individual when considering a
sentence of death.  A step toward consistency is a step
away from fairness.

                            B
  There is a heightened need for fairness in the admin-
istration of death.  This unique level of fairness is born
of the appreciation that death truly is different from all
other punishments a society inflicts upon its citizens.
-Death, in its finality, differs more from life imprison-
ment than a 100-year prison term differs from one of
only a year or two.-  Woodson, 428 U. S., at 305
(opinion of Stewart, Powell, and Stevens, JJ.).  Because
of the qualitative difference of the death penalty, -there
is a corresponding difference in the need for reliability
in the determination that death is the appropriate
punishment in a specific case.-  Ibid.  In Woodson, a
decision striking down mandatory death penalty statutes
as unconstitutional, a plurality of the Court explained:
-A process that accords no significance to relevant facets
of the character and record of the individual offender or
the circumstances of the particular offense excludes from
consideration in fixing the ultimate punishment of death
the possibility of compassionate or mitigating factors
stemming from the diverse frailties of humankind.-  Id.,
at 304.
  While the risk of mistake in the determination of the
appropriate penalty may be tolerated in other areas of
the criminal law, -in capital cases the fundamental
respect for humanity underlying the Eighth Amendment
. . . requires consideration of the character and record
of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable
part of the process of inflicting the penalty of death.-
Ibid.  Thus, although individualized sentencing in capital
cases was not considered essential at the time the
Constitution was adopted, Woodson recognized that
American standards of decency could no longer tolerate
a capital sentencing process that failed to afford a
defendant individualized consideration in the determina-
tion whether he or she should live or die.  Id., at 301.
  The Court elaborated on the principle of individualized
sentencing in Lockett v. Ohio, 438 U. S. 586 (1978).  In
that case, a plurality acknowledged that strict restraints
on sentencer discretion are necessary to achieve the
consistency and rationality promised in Furman, but
held that, in the end, the sentencer must retain unbri-
dled discretion to afford mercy.  Any process or proce-
dure that prevents the sentencer from considering -as a
mitigating factor, any aspect of a defendant's character
or record and any circumstances of the offense that the
defendant proffers as a basis for a sentence less than
death,- creates the constitutionally intolerable risk that
-the death penalty will be imposed in spite of factors
which may call for a less severe penalty.-  Id., at
604-605 (emphasis in original).  See also Sumner v.
Shuman, 483 U. S. 66 (1987) (invalidating a mandatory
death penalty statute reserving the death penalty for
life-term inmates convicted of murder).  The Court's duty
under the Constitution therefore is to -develop a system
of capital punishment at once consistent and principled
but also humane and sensible to the uniqueness of the
individual.-  Eddings v. Oklahoma, 455 U. S., at 110.

                            C
  I believe the Woodson-Lockett line of cases to be
fundamentally sound and rooted in American standards
of decency that have evolved over time.  The notion of
prohibiting a sentencer from exercising its discretion -to
dispense mercy on  the basis of factors too intangible to
write into a statute,- Gregg, 428 U. S., at 222 (White,
J., concurring), is offensive to our sense of fundamental
fairness and respect for the uniqueness of the individual.
In California v. Brown, 479 U. S. 538 (1987), I said in
dissent:
      -The sentencer's ability to respond with mercy
towards a defendant has always struck me as a
particularly valuable aspect of the capital sentencing
procedure. . . . [W]e adhere so strongly to our belief
that a sentencer should have the opportunity to
spare a capital defendant's life on account of com-
passion for the individual because, recognizing that
the capital sentencing decision must be made in the
context of `contemporary values,' Gregg v. Georgia,
428 U. S., at 181 (opinion of Stewart, Powell, and
Stevens, JJ.), we see in the sentencer's expression
of mercy a distinctive feature of our society that we
deeply value.-  Id., at 562-563.
  Yet, as several Members of the Court have recognized,
there is real -tension- between the need for fairness to
the individual and the consistency promised in Furman.
See Franklin v. Lynaugh, 487 U. S. 164, 182 (1988)
(plurality opinion); California v. Brown, 479 U. S., at
544 (O'Connor, J., concurring); McCleskey v. Kemp, 481
U. S., at 363 (Blackmun, J., dissenting); Graham v.
Collins, __ U. S. ___, ___ (1993) (Thomas, J., concur-
ring).  On the one hand, discretion in capital sentencing
must be -`controlled by clear and objective standards so
as to produce non-discriminatory [and reasoned] applica-
tion.'- Gregg, 428 U. S., at 198 (opinion of Stewart,
Powell, and Stevens, JJ.), quoting Coley v. State, 231
Ga. 829, 834, 204 S.E. 2d 612, 615 (1974).  On the other
hand, the Constitution also requires that the sentencer
be able to consider -any relevant mitigating evidence
regarding the defendant's character or background, and
the circumstances of the particular offense.-  California
v. Brown, 479 U. S. 538, 544 (1987) (O'Connor, J.,
concurring).  The power to consider mitigating evidence
that would warrant a sentence less than death is
meaningless unless the sentencer has the discretion and
authority to dispense mercy based on that evidence.
Thus, the Constitution, by requiring a heightened degree
of fairness to the individual, and also a greater degree
of equality and rationality in the administration of
death, demands sentencer discretion that is at once
generously expanded and severely restricted.
  This dilemma was laid bare in Penry v. Lynaugh, 492
U. S. 302 (1989).  The defendant in Penry challenged the
Texas death penalty statute, arguing that it failed to
allow the sentencing jury to give full mitigating effect to
his evidence of mental retardation and history of child
abuse.  The Texas statute required the jury, during the
penalty phase, to answer three -special issues-; if the
jury unanimously answered -yes- to each issue, the trial
court was obligated to sentence the defendant to death.
Tex. Code Crim. Proc. Ann., Art. 37.071(c)-(e) (Vernon
1981 and Supp. 1989).  Only one of the three
issues-whether the defendant posed a -continuing
threat to society--was related to the evidence Penry
offered in mitigation.  But Penry's evidence of mental
retardation and child abuse was a two-edged sword as
it related to that special issue: -it diminish[ed] his
blameworthiness for his crime even as it indicate[d] that
there [was] a probability that he [would] be dangerous
in the future.-  492 U. S., at 324.  The Court therefore
reversed Penry's death sentence, explaining that a
reasonable juror could have believed that the statute
prohibited a sentence less than death based upon his
mitigating evidence.  Id., at 326.
  After Penry, the paradox underlying the Court's
post-Furman jurisprudence was undeniable.  Texas had
complied with Furman by severely limiting the sen-
tencer's discretion, but those very limitations rendered
Penry's death sentence unconstitutional.

                            D
  The theory underlying Penry and Lockett is that an
appropriate balance can be struck between the Furman
promise of consistency and the Lockett requirement of
individualized sentencing if the death penalty is concep-
tualized as consisting of two distinct stages.  In the
first stage of capital sentencing, the demands of Furman
are met by -narrowing- the class of death-eligible
offenders according to objective, fact-bound characteris-
tics of the defendant or the circumstances of the offense.
Once the pool of death-eligible defendants has been
reduced, the sentencer retains the discretion to consider
whatever relevant mitigating evidence the defendant
chooses to offer.  See Graham v. Collins, __ U. S., at __
(Stevens, J., dissenting) (slip op. 3) (arguing that
providing full discretion to the sentencer is not inconsis-
tent with Furman and may actually help to protect
against arbitrary and capricious sentencing).
  Over time, I have come to conclude that even this
approach is unacceptable:  It simply reduces, rather than
eliminates, the number of people subject to arbitrary
sentencing.  It is the decision to sentence a defendant
to death-not merely the decision to make a defendant
eligible for death-that may not be arbitrary.  While one
might hope that providing the sentencer with as much
relevant mitigating evidence as possible will lead to
more rational and consistent sentences, experience has
taught otherwise.  It seems that the decision whether a
human being should live or die is so inherently subjec-
tive-rife with all of life's understandings, experiences,
prejudices, and passions-that it inevitably defies the
rationality and consistency required by the Constitution.

                            E
  The arbitrariness inherent in the sentencer's discretion
to afford mercy is exacerbated by the problem of race.
Even under the most sophisticated death penalty
statutes, race continues to play a major role in deter-
mining who shall live and who shall die.  Perhaps it
should not be surprising that the biases and prejudices
that infect society generally would influence the determi-
nation of who is sentenced to death, even within the
narrower pool of death-eligible defendants selected
according to objective standards.  No matter how
narrowly the pool of death-eligible defendants is drawn
according to objective standards, Furman's promise still
will go unfulfilled so long as the sentencer is free to
exercise unbridled discretion within the smaller group
and thereby to discriminate.  -`The power to be lenient
[also] is the power to discriminate.'-  McCleskey v.
Kemp, 481 U. S., at 312, quoting K. Davis, Discretionary
Justice 170 (1973).
  A renowned example of racism infecting a capital-
sentencing scheme is documented in McCleskey v. Kemp,
481 U. S. 279 (1987).  Warren McCleskey, an African-
American, argued that the Georgia capital-sentencing
scheme was administered in a racially discriminatory
manner, in violation of the Eighth and Fourteenth
Amendments.  In support of his claim, he proffered a
highly reliable statistical study (the Baldus study) which
indicated that, -after taking into account some 230
nonracial factors that might legitimately influence a
sentencer, the jury more likely than not would have
spared McCleskey's life had his victim been black.-  481
U. S., at 325 (emphasis in original) (Brennan, J.,
dissenting).  The Baldus study further demonstrated
that blacks who kill whites are sentenced to death  -at
nearly 22 times the rate of blacks who kill blacks, and
more than 7 times the rate of whites who kill blacks.-
Id., at 327 (emphasis in original).
  Despite this staggering evidence of racial prejudice
infecting Georgia's capital-sentencing scheme, the
majority turned its back on McCleskey's claims, appar-
ently troubled by the fact that Georgia had instituted
more procedural and substantive safeguards than most
other States since Furman, but was still unable to
stamp out the virus of racism.  Faced with the apparent
failure of traditional legal devices to cure the evils
identified in Furman, the majority wondered aloud
whether the consistency and rationality demanded by
the dissent could ever be achieved without sacrificing
the discretion which is essential to fair treatment of
individual defendants:
-[I]t is difficult to imagine guidelines that would
produce the predictability sought by the dissent
without sacrificing the discretion essential to a
humane and fair system of criminal justice . . . .
The dissent repeatedly emphasizes the need for `a
uniquely high degree of rationality in imposing the
death penalty' . . . .  Again, no suggestion is made
as to how greater `rationality' could be achieved
under any type of statute that authorizes capital
punishment . . . .  Given these safeguards already
inherent in the imposition and review of capital
sentences, the dissent's call for greater rationality is
no less than a claim that a capital punishment
system cannot be administered in accord with the
Constitution.-  Id., at 314-315, n. 37.
  I joined most of Justice Brennan's significant dissent
which expounded McCleskey's Eighth Amendment claim,
and I wrote separately, id., at 345, to explain that
McCleskey also had a solid equal protection argument
under the Fourteenth Amendment.  I still adhere to the
views set forth in both dissents, and, as far as I know,
there has been no serious effort to impeach the Baldus
study.  Nor, for that matter, have proponents of capital
punishment provided any reason to believe that the
findings of that study are unique to Georgia.
  The fact that we may not be capable of devising proce-
dural or substantive rules to prevent the more subtle
and often unconscious forms of racism from creeping into
the system does not justify the wholesale abandonment
of the Furman promise.  To the contrary, where a
morally irrelevant-indeed, a repugnant-consideration
plays a major role in the determination of who shall live
and who shall die, it suggests that the continued
enforcement of the death penalty in light of its clear and
admitted defects is deserving of a -sober second
thought.-  Justice Brennan explained:
-Those whom we would banish from society or from
the human community itself often speak in too faint
a voice to be heard above society's demand for
punishment.  It is the particular role of courts to
hear these voices, for the Constitution declares that
the majoritarian chorus may not alone dictate the
conditions of social life.  The Court thus fulfills,
rather than disrupts, the scheme of separation of
powers by closely scrutinizing the imposition of the
death penalty, for no decision of a society is more
deserving of the `sober second thought.'  Stone, The
Common Law in the United States, 50 Harv. L. Rev.
4, 25 (1936).-  Id., at 343.

                            F
  In the years since McCleskey, I have come to wonder
whether there was truth in the majority's suggestion
that discrimination and arbitrariness could not be
purged from the administration of capital punishment
without sacrificing the equally essential component of
fairness-individualized sentencing.  Viewed in this way,
the consistency promised in Furman and the fairness to
the individual demanded in Lockett are not only in-
versely related, but irreconcilable in the context of
capital punishment.  Any statute or procedure that could
effectively eliminate arbitrariness from the administra-
tion of death would also restrict the sentencer's discre-
tion to such an extent that the sentencer would be
unable to give full consideration to the unique character-
istics of each defendant and the circumstances of the
offense.  By the same token, any statute or procedure
that would provide the sentencer with sufficient discre-
tion to consider fully and act upon the unique circum-
stances of each defendant would -thro[w] open the back
door to arbitrary and irrational sentencing.-  Graham v.
Collins, __  U. S., at __ (Thomas, J., concurring) (slip
op. 17).  All efforts to strike an appropriate balance
between these conflicting constitutional commands are
futile because there is a heightened need for both in the
administration of death.
  But even if the constitutional requirements of consis-
tency and fairness are theoretically reconcilable in the
context of capital punishment, it is clear that this Court
is not prepared to meet the challenge.  In apparent
frustration over its inability to strike an appropriate
balance between the Furman promise of consistency and
the Lockett requirement of individualized sentencing, the
Court has retreated from the field, allowing relevant
mitigating evidence to be discarded, vague aggravating
circumstances to be employed, and providing no indica-
tion that the problem of race in the administration of
death will ever be addressed.  In fact some members of
the Court openly have acknowledged a willingness
simply to pick one of the competing constitutional
commands and sacrifice the other.  See Graham, __
U. S., at __ (Thomas, J., concurring) (calling for the
reversal of Penry); Walton v. Arizona, 497 U. S. 639, 673
(1990) (Scalia, J., concurring in part and concurring in
the judgment) (announcing that he will no longer enforce
the requirement of individualized sentencing, and
reasoning that either Furman or Lockett is wrong and a
choice must be made between the two).  These develop-
ments are troubling, as they ensure that death will
continue to be meted out in this country arbitrarily and
discriminatorily, and without that -degree of respect due
the uniqueness of the individual.-  Lockett, 438 U. S., at
605.  In my view, the proper course when faced with
irreconcilable constitutional commands is not to ignore
one or the other, nor to pretend that the dilemma does
not exist, but to admit the futility of the effort to
harmonize them.  This means accepting the fact that the
death penalty cannot be administered in accord with our
Constitution.

                           II
  My belief that this Court would not enforce the death
penalty (even if it could) in accordance with the Consti-
tution is buttressed by the Court's -obvious eagerness to
do away with any restriction on the States' power to
execute whomever and however they please.-  Herrera,
__ U. S., at __ (Blackmun, J., dissenting) (slip op. 18).
I have explained at length on numerous occasions that
my willingness to enforce the capital punishment
statutes enacted by the States and the Federal Govern-
ment, -notwithstanding my own deep moral reservations
. . . has always rested on an understanding that certain
procedural safeguards, chief among them the federal
judiciary's power to reach and correct claims of constitu-
tional error on federal habeas review, would ensure that
death sentences are fairly imposed.-  Sawyer v. Whitley,
___ U. S. ___, ___ (1992) (Blackmun, J., concurring in
the judgment) (slip op. 8-9).  See also Herrera v.
Collins, __ U. S., at __ (Blackmun, J., dissenting).  In
recent years, I have grown increasingly skeptical that
-the death penalty really can be imposed fairly and in
accordance with the requirements of the Eighth Amend-
ment,- given the now limited ability of the federal courts
to remedy constitutional errors.  Sawyer, __ U. S., at __
(Blackmun, J., concurring in the judgment) (slip op. 1).
  Federal courts are required by statute to entertain
petitions from state prisoners who allege that they are
held -in violation of the Constitution or the treaties of
the United States.-  28 U. S. C. 2254(a).  Serious
review of these claims helps to ensure that government
does not secure the penalty of death by depriving a
defendant of his or her constitutional rights.  At the
time I voted with the majority to uphold the constitu-
tionality of the death penalty in Gregg v. Georgia, 428
U. S. 153, 227 (1976), federal courts possessed much
broader authority than they do today to address claims
of constitutional error on habeas review.  In 1976, there
were few procedural barriers to the federal judiciary's
review of a State's capital sentencing scheme, or the
fairness and reliability of a State's decision to impose
death in a particular case.  Since then, however, the
Court has -erected unprecedented and unwarranted
barriers- to the federal judiciary's review of the constitu-
tional claims of capital defendants.  Sawyer, __ U. S., at
__ (Blackmun, J., concurring in the judgment) (slip op.
2).  See, e.g., Herrera v. Collins, supra; Coleman v.
Thompson, 501 U. S. __ (1991); McCleskey v. Zant, 499
U. S. __ (1991); Keeney v. Tamayo-Reyes, __ U. S. __
(1992) (overruling Townsend v. Sain, 372 U. S. 293
(1963), in part); Teague v. Lane, 489 U. S. 288 (1989);
Butler v. McKellar, 494 U. S. 407 (1990).
  The Court's refusal last term to afford Leonel Torres
Herrera an evidentiary hearing, despite his colorable
showing of actual innocence, demonstrates just how far
afield the Court has strayed from its statutorily and
constitutionally imposed obligations.  See Herrera v.
Collins, supra.  In Herrera, only a bare majority of this
Court could bring itself to state forthrightly that the
execution of an actually innocent person violates the
Eighth Amendment.  This concession was made only in
the course of erecting nearly insurmountable barriers to
a defendant's ability to get a hearing on a claim of
actual innocence.  Ibid.  Certainly there will be individu-
als who are actually innocent who will be unable to
make a better showing than what was made by Herrera
without the benefit of an evidentiary hearing.  The
Court is unmoved by this dilemma, however; it prefers
-finality- in death sentences to reliable determinations
of a capital defendant's guilt.  Because I no longer can
state with any confidence that this Court is able to
reconcile the Eighth Amendment's competing constitu-
tional commands, or that the federal judiciary will
provide meaningful oversight to the state courts as they
exercise their authority to inflict the penalty of death, I
believe that the death penalty, as currently adminis-
tered, is unconstitutional.

                           III
  Perhaps one day this Court will develop procedural
rules or verbal formulas that actually will provide
consistency, fairness, and reliability in a capital-sentenc-
ing scheme.  I am not optimistic that such a day will
come.  I am more optimistic, though, that this Court
eventually will conclude that the effort to eliminate
arbitrariness while preserving fairness -in the infliction
of [death] is so plainly doomed to failure that it-and
the death penalty-must be abandoned altogether.-
Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (Marshall,
J., concurring in the judgment).  I may not live to see
that day, but I have faith that eventually it will arrive.
The path the Court has chosen lessens us all.  I dissent.