16 April 2017


On a day purportedly devoted in this allegedly "christian nation" to celebrating redemption — although if two days prior, on which the murder of a reputed semideity incited by mob action on grounds of religious convenience and not criminal activity is designated "Good Friday," one must wonder what "Mediocre Friday" or "Bad Friday" would look like, and whether it has anything to do with whether the wine being served is kashrut — I offer the following quotation, particularly but not only to the executive branch of the Arkansas government.

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, the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere aesthetics, and abdicating its statutorily and constitutionally 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 consistently 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, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. 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.

Callins v. Collins, 510 U.S. 1141, 1144–46 (1994) (Blackmun, J., dissenting) (citations and footnote omitted).

Yes, there are some bad dudes out there. How certain can we be that we have singled out not just only bad dudes, but all of the bad dudes, so that we are imposing "fair, consistent, and reliable sentences of death"? And what, pray tell, is the basis for that certitude… given that Justice Blackmun was a helluva lot smarter than the subject-to-partisan-and-popular-pressure elected officials in the actual discretionary roles (executive, prosecutorial, and — too often and to my mind unconstitutionally per se — judicial)? I would never shy from jury duty; however, despite having been a line commissioned officer, I am not death-penalty qualified… precisely because I know what that machinery looks like, how it is designed, and — more to the point — how much chewing gum, baling wire, and duct tape is holding it together. And if I cannot trust myself with this Rube Goldbergian device, I sure as hell cannot trust bloody politicians motivated inconsistently by willful ignorance, earthly vengeance, residual bigotry, and the next election.

None of this is to say that the State can never use lethal force. It is to say that those doing so must take personal responsibility for doing so, and pay the appropriate price — not hide behind machinery.