Blackmun made this painfully honest assessment in a dissent from the Court's refusal to review the death sentence of Bruce Callins. Blackmun explained that "rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved," he felt "morally and intellectually obligated simply to concede that the death penalty experiment has failed." He understood that "no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies." He concluded that:
The basic question-- does the system accurately and consistently determine which defendants "deserve" to die?-- cannot be answered in the affirmative. . . . 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.Blackmun's heartfelt statement stands in stark contrast to Justice Antonin Scalia's cold-blooded retort. Scalia chided Blackmun for choosing the Callins' case -- involving the lethal shooting of a bar patron during a robbery -- as the vehicle to declare that the death penalty was unconstitutional. Scalia asserted that "death-by-injection . . . looks even better next to some of the other cases currently before us, which Justice Blackmun did not select . . . for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!"
The case that Justice Scalia plucked out as symbolizing how well the process works in determining who is deserving of death was that of Henry Lee "Buddy" McCollum.
Back in 1994, several months after the Court denied review in the Callins case, it denied review in McCollum's as well. Blackmun in his dissent from that denial noted that Scalia had previously questioned why he did not choose this as the case to announce his position on the death penalty. Blackmun acknowledged that the crime was, indeed, "abhorrent" but that "there is more to the story, including that McCollum has an IQ between 60 and 69 with the mental age of a 9-year old, and that he was "far from the most culpable" of those purportedly involved in the crime. Blackmun concluded: "That our system of capital punishment would single out Buddy McCollum to die for this brutal crime only confirms my conclusion that the death penalty experiment has failed. Our system of capital punishment simply does not accurately and consistently determine which defendants most "deserve" to die."
There is even more to the story than Blackmun knew. Turns out Henry Lee McCollum -- and his half-brother Leon Brown who had been convicted and sentenced to life -- were innocent.
With no physical evidence tying them to the crime, these two mentally-disabled half-brothers had been convicted based solely on their confessions. The confessions were written in long hand by the police and signed by McCollum and Brown, who shortly afterwards insisted they were tricked and bullied into signing them. The confessions were, in fact, coerced and false. Only recently was the North Carolina Innocence Inquiry Commission able to obtain DNA testing of a cigarette butt found at the crime scene -- testing which showed a match with a sex offender who lived near the crime scene and had been convicted of another rape-murder that occurred around the same time.
Last September, a North Carolina Superior Court judge vacated the convictions of McCollum and Brown, and ordered their release-- with the support of the prosecuting district attorney, the notorious Joe Freeman Britt, described by the New York Times as "the 6-foot-6, Bible-quoting district attorney who was later profiled by “60 Minutes” as the country’s 'deadliest D.A.' because he sought the death penalty so often."
And last week, North Carolina Governor Pat McCrory pardoned McCollum and Brown, stating: “Based on the available evidence I’ve reviewed, I am granting pardons of innocence to Henry McCollum and Leon Brown. It’s the right thing to do.”
Justice Scalia -- along with Justice Clarence Thomas -- has stated that the execution of innocent men or women after they were afforded a full and fair trial does not offend the Constitution. He is surely not troubled in the least by the revelation that the condemned man he anointed as a shining example for the death penalty's efficacy was declared innocent after serving 30 years on death row -- or troubled that this innocent man would have been executed long ago if Scalia had his way. The rest of us should be.