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Blackmun off base on death penalty

Justice Harry Blackmun, again confusing autobiography with constitutional reasoning, has dissented from the Supreme Court's refusal to review a Texas capital punishment conviction, announcing that he is too personally distressed ever again to sanction the death penalty, no matter what. His 22-page outburst, refuted by Justice Antonin Scalia in four scalding paragraphs, uses the results of the court's recent rulings about how capital punishment can be constitutional as an excuse for declaring capital punishment unconstitutional.

Opponents of capital punishment have two problems: The country wants it and the Constitution assumes it. The Fifth Amendment contains provisions concerning capital punishment. That, along with 18th century practices, proves the Constitution's framers did not consider capital punishment "cruel and unusual." But in 1972 the court's then liberal majority effectively declared the capital punishment laws of all 50 states unconstitutional.

In the 5-4 ruling two justices said America's "evolving standards of decency" had brought capital punishment under the proscription of "cruel and unusual" punishments. The other three majority justices argued only that capital punishment was cruel and unusual because it was then administered in a manner they considered capricious.

Thirty-seven states promptly disproved the "evolving standards" theory by passing capital punishment laws crafted to satisfy the court's criteria. Those criteria have been fine-tuned incessantly since the court affirmed the constitutionality of a death sentence in 1976.

The trouble is that the court has produced conflicting criteria that, in combination, defeat the attempt to eliminate what the court considers capricious administration of the death penalty. The court has said juries' discretion must be severely confined by rules _ by adjectives, actually _ about the sort of crimes ("especially heinous, atrocious or cruel" in Florida, "wantonly vile, horrible or inhumane" in Georgia) for which death can be the penalty. But simultaneously the court has said juries must be unconstrained when considering factors that conceivably could make capital punishment seem inappropriate in a particular case.

Taken together, these rules are a recipe for unpredictability. So Blackmun now says that because the court has concocted self-defeating rules regarding capital punishment, capital punishment must be inherently unconstitutional.

Scalia agrees with Blackmun that the court has attached to capital punishment incompatible commands _ discretion to impose death must be closely confined, but discretion not to impose it must be unlimited. But because both commands were formulated by the court "without benefit of any textual or historical support," Scalia says the solution is to abandon one, or both. Instead, Blackmun uses the court-created confusion as an excuse to, in effect, amend the Constitution.

Blackmun's dissent begins by mournfully imagining the Texas murderer being executed by lethal injection. Scalia focuses instead on the murderer's victim "ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern" the murderer was robbing.