Once upon a time — a while back, but still during my lifetime, which still means that it was before Pong — a Republican president nominated the last Supreme Court justice with a STEM background (and at that, it was only the last letter). That nominee was considered a reliable conservative, and had certainly been a reliable conservative while a Court of Appeals judge.
Things did not turn out in line with expectations.
That Justice is far more famous for one particular other decision — at the other end of both life and his career, ironically enough — but he should be more respected for one particular dissent. It was a dissent in a case not even taken up by the Court.
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, 1145–46 (Blackmun J., dissenting from denial of cert.) (citations and footnotes omitted).
Justice Blackmun was more circumspect than am I about the fundamental flaw in the death penalty system: Because it is based upon human discretion, it is inherently imperfect in a context that demands either perfection or acceptance of complicity in the imperfection… and inability to actually correct mistakes in that imperfection. The failure of this "experiment" is disturbingly close — in more respects than just the obvious — to the Tuskegee Study. When an experiment fails, one shouldn't just repeat it hoping for better data the next time… especially given the consequences of the "data points."
President-Elect Biden, some time during your first week in office, please consider using your unreviewable clemency powers to commute every federal death sentence and take this out of the hands, and off the desks, of the fallible human beings making up the federal prosecution, defense, and judicial systems. (It's for their benefit and health, too, even if they refuse to recognize it or arrogantly believe that it doesn't effect them. And for those that duty really doesn't effect, fire them; they are the last sort of people you want making these decisions.) Follow up by directing the Department of Justice to never again seek the death penalty. It's not that some particularly evil malefactors don't "deserve" death; it's that I have less than zero confidence that such a penalty will be meted out to all of those who "deserve" it — and to only those who "deserve" it.