Justice Harry Blackmun couldn’t take it any more and so announced from the US Supreme Court bench that he would “no longer tinker with the machinery of death” and would henceforth vote to reverse all death penalty cases, as several justices had done before him. Never five at the same time, of course.
What he could not take any more is what virtually all judges and most lawyers who know anything about the death penalty admit privately. Death is administered in an arbitrary manner to those least able to resist the government when it determines to make a human sacrifice to the crime gods.
There is no evidence that government killing makes things better for the next of kin. Econometrics tells us that government killing might prevent a future murder while multiple regression analysis tells us that’s not true. Who has the burden of proof, anyway? Adding insult to injury, government killing costs the government a great deal more than life without parole—but money is no object when gods demand blood.
Killing convicts indulges superstition on the level of a cargo cult. Propitiating the crime gods is claimed to bring “cloture” to the next of kin. Guilt is not required of the individual selected for sacrifice, and the more horrible the killing the less evidence of guilt is required.
We judges know that we would never trust our own lives to this system, but we differ on how we rationalize trusting the lives of others to it. Mostly, we focus on the improvements to the machinery of death, one of which is that it can seldom be imposed in these times except for a crime involving homicide.
When we think of the nonwhite men executed for raping white women, account for the difficulties of cross-racial identification, racial bias in the justice system, and the exoneration rate of about 25 per cent where DNA is available, we tend to brag about rape of an adult woman with no further injury being no longer death penalty eligible. (Note I did not say one fourth of convicted rapists are factually innocent. Before you roast me, pay attention to what I actually said and can prove.)
The facts of a killing are useful in bucking up a jury for the killing, but they can also be used to tip the scales toward mercy if the killing you describe is the cold-blooded, medicalized one after years spent on death row. It was this sort of description of the day the government picks to take a life that Justice Blackmun used to explain himself, a rhetorical flourish in addition to legal issues such as actual innocence not being a ground to get a death sentence overturned with federal habeas corpus.
It was Justice Antonin Scalia who said it famously and coldly:
We (agreed to hear) the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be "actually innocent." . . . (I)t is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice . . . for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
About four months later, Leonel Herrera, whose petition had been turned away, was sacrificed to the crime gods, and in one of many macabre customs of the sacrifice, his final words were recorded for posterity: “I am innocent, innocent, innocent…I am an innocent man, and something very wrong is taking place tonight.”
The same Justice Scalia who found his lack of duty to inquire about actual innocence “perfectly clear,” was offended by Justice Blackmun’s descriptions of the human sacrifice. Scalia was informed, correctly, that the medicalization of the human sacrifice has made it generally much cleaner than the crimes for which the sacrifice is offered, a dozen or so botched lethal injections notwithstanding. Therefore, Scalia took Justice Blackmun to task:
The death-by-injection which JUSTICE BLACKMUN describes looks pretty desirable next to (the death of the victim in a tavern shooting). It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutional - for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat.
The more gruesome the crime, you see, the greater the necessity to appease the crime gods and the less evidence is necessary to select the sacrificial offering. In the case Justice Scalia put forward, a prosecutor The New York Times called “America’s deadliest D.A.” made sacrificial offerings of Henry McCollum and Leon Brown, mentally impaired black teenagers.
The “evidence” was their confessions, which were inconsistent with each other and soon recanted by both as well as testimony by an informer who had previously not implicated them. There was no physical evidence.
Not investigated was a serial sex offender who lived less than 100 yards from the crime and who would shortly kill a teenage girl under what the Times called “strikingly similar circumstances.”
The Times also noted that the community where this happened has “a three-way racial split — white, black and American Indian — (with) complaints from the latter two groups of discrimination by whites who held power despite being a numerical minority.” In 1988, “American Indian activists took 19 hostages at the local newspaper to protest discrimination and corruption in the criminal justice system.”
At the trial of the two black kids, the prosecutor suggested that a cigarette found at the scene belonged to the killers. Therefore, the cigarette became part of the trial record, and after Henry McCollum had spent more than 30 years on death row (Brown’s sentence had been reduced to life) it remained available for DNA testing.
The DNA came back matching Roscoe Artis, who was convicted of a similar crime four weeks after and a short distance from the first crime scene. Nothing tested for DNA matched McCollum or Brown.
Oh, and it turned out that the informer who said he knew nothing about the murder but later implicated McCollum and Brown took a polygraph test that was not shared with the public defender. The polygraph said he told the truth the first time.
McCollum and Brown have now been freed on a finding of actual innocence by a state court because, as Justice Scalia would remind us, actual innocence does not state a claim for federal habeas corpus. And the crime gods really don’t care whether the human sacrifice was guilty.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.