Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 23, 1994 TAG: 9402230030
SECTION: NATIONAL/INTERNATIONAL PAGE: A-7 EDITION: METRO
SOURCE: Newsday
DATELINE: WASHINGTON LENGTH: Medium
Blackmun said he had determined that the ultimate penalty cannot be applied fairly and reliably.
"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," Blackmun said, in a written dissent to the court's refusal to hear the appeal of a Texas death row inmate.
As a practical matter, Blackmun's pronouncement will have little effect. No other justice on the court has taken the same position since the retirements of Thurgood Marshall and William Brennan in 1991 and 1990, respectively. The court's newest member, Ruth Bader Ginsburg, already has voted to uphold one death penalty. And Blackmun, who is 85, is expected to retire soon, possibly this year.
But the announcement was a dramatic marker in Blackmun's personal evolution.
Blackmun, a Republican from St. Paul, Minn., was appointed by former President Nixon in 1971 and voted with conservatives in his early years on the court.
He dissented when the court declared the death penalty unconstitutional in 1972 and supported its reinstatement four years later, as long as states applied it fairly.
He has become increasingly liberal as the court has shifted to the right. Some scholars attribute the change in part to the attacks on him by conservatives for his authorship of the 1973 Roe vs. Wade opinion supporting abortion rights.
Blackmun's emotional dissent drew a sharply worded rebuke from Justice Antonin Scalia, a strong supporter of the death penalty, who said that Blackmun's conclusion is nowhere supported in the text of the Constitution.
by CNB