Justice Harry Blackmun’s long struggle to reconcile his concern for the individual, his respect for legislative and judicial process, and his awareness of the fallibility of individuals and institutions formed a jurisprudence that continues to instruct.
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This year, the country will commemorate the 40th anniversary of Roe v. Wade: the landmark decision written by one of Minnesota’s own. In Roe, the majority opinion was drafted by Justice Harry Blackmun, who grew up on the east side of St. Paul and later served as general counsel for the Mayo Clinic. Though Justice Blackmun is remembered primarily for Roe v. Wade, his death-penalty jurisprudence provides greater insight to his approach to judicial decision making. These opinions show how Justice Blackmun was fundamentally influenced by his roots in Minnesota, a state that did not have the death penalty. They reveal the importance that he placed on the specific facts and the real people who would be affected by his decisions. And they demonstrate his willingness to change his mind when presented with evidence that the system—a system he fundamentally believed in—simply failed to meet its objectives.
Justice Blackmun began struggling with the imposition of the death penalty during his first judicial appointment to the U.S. Court of Appeals for the 8th Circuit. For years, Justice Blackmun repeatedly affirmed the imposition of the death penalty. In so doing, however, he always thoughtfully and carefully considered the facts before him, recognizing the gravity of his task and its effect on human life:
We turn to the facts which, perhaps, we cover in too much detail. We do this so that the entire story, with all of its implications, may be apparent.1
Then-Judge Blackmun devoted the next 23 pages of his opinion in Feguer v. United States to those specific facts, which involved a man who had been sentenced to hang for kidnapping and murder. Within that case, Blackmun recognized the important role played by all involved in the judicial system, including the difficult and unique role played by the trial court:
We deem it only right and proper, too, that we note a word of respect for the work of the able and experienced trial judge in this not-easy-to-try case. The entire record of the trial and of the pre-trial matters demonstrates meticulous care for correctness of procedure; for the assurance of proper and adequate protection for the defendant; and, as best we can tell from the cold record, for the preservation of a trial atmosphere of that decorum, impartiality, and control which is necessary and conducive to the proper administration of criminal justice.2
And Blackmun also recognized the important role that the appellate court played in the administration of justice, especially when the death penalty was at issue:
It is perhaps unnecessary to say that when a criminal case involving the ultimate penalty which the law can impose comes before an appellate court for review, that court has an obligation, serious and profound, to examine with care every point of substance raised by the defense and to acquaint itself intimately with the details of the record.3
In Feguer, then, one of Blackmun’s early death-penalty cases, we see certain themes that will arise again and again in his opinions: a belief that the facts and the individual person before the court always matter, and a fundamental respect for the authority of each player in the justice system when that player competently fills the assigned role.
While sitting on the 8th Circuit, Blackmun faced many other difficult criminal-law issues that reflect these themes as well. In Maxwell v. Bishop,4 Blackmun again had to address a challenge to the death penalty. This time, though, the defendant’s attorney put forward a detailed, statistical demonstration that the imposition of the death penalty in cases of rape was racially discriminatory.5 While Blackmun clearly struggled with the decision, he once again focused on the specific facts and the actual person in front of him: “What we are concerned with here is Maxwell’s case and only Maxwell’s case.”6 As such, Blackmun rejected the statistical arguments.
Another noteworthy 8th Circuit case is Jackson v. Bishop,7 which involved the use of a strap to beat Arkansas prisoners as a means of prison discipline.8 The inmates argued that the discipline, administered without any precautionary safeguards, violated the 8th Amendment prohibition against cruel and unusual punishment. Blackmun agreed. He recognized that the emphasis on the 8th Amendment needed to rest “on man’s basic dignity, on civilized precepts, and on flexibility and improvement in standards of decency as society progresses and matures.”9 There, Blackmun relied on the fact that nearly every state had abolished the use of the strap as a form of prison discipline.
Blackmun’s approach on the 8th Circuit in many ways foreshadowed the approach he would later take on the United States Supreme Court: he placed a great deal of confidence in government institutions—state legislatures, the state and federal judiciary, and Congress—to vigilantly protect the rights of capital defendants by adhering to procedural and substantive safeguards, and by constantly evaluating whether the “death penalty experiment,”10 as he later called it, was working as intended. It is clear from his early decisions that Justice Blackmun believed there was nothing per se unconstitutional about capital punishment, but that its constitutionality hinged upon each actor involved in the process doing its job. It is also clear, however, that over the course of his Supreme Court tenure, Justice Blackmun became quite dispirited with that process and with the state and federal actors involved in making death-penalty determinations. And throughout his tenure, Blackmun never lost sight of the fact that his opinions affected real people’s lives.
Furman and its Legacy
In 1970, at the time of his appointment to the United States Supreme Court by President Richard Nixon, death-penalty jurisprudence was undergoing a dramatic shift. By then, the Court had ruled that the 8th Amendment did in fact apply to the states, and several of the justices had voiced skepticism over the imposition of the death penalty.11 Then, in 1972, the Court decided Furman v. Georgia,12 which, through a highly fractured per curiam decision, invalidated the death penalty statutes of 39 states and the District of Columbia as violating the 8th Amendment prohibition against cruel and unusual punishment.13
Justice Blackmun dissented. His dissent is a vividly written discussion of his own personal “distaste” for the death penalty. He began by openly acknowledging the impact of his Minnesota roots:
Having lived for many years in a State that does not have the death penalty, that effectively abolished it in 1911, and that carried out its last execution on February 13, 1906, capital punishment had never been a part of life for me. In my State, it just did not exist.14
Justice Blackmun explained that he first “struggled silently” with the issue of the death penalty while sitting on the 8th Circuit, where he had previously revealed his “distress and concern” at the use of the death penalty in certain cases.15 His personal feelings aside, however, Justice Blackmun was not persuaded by the majority’s holding that the death penalty, in its current form, violated the 8th Amendment in all instances—a holding that effectively overturned unanimous decisions of the Court dating back decades, and did so because “the passage of time has taken us to a place of greater maturity and outlook.”16 Of course, this was almost the very reason that Justice Blackmun had given for invalidating the use of the strap in Arkansas prisons; but in 1972, the death penalty—unlike the strap—was still widely used throughout the country. Justice Blackmun wrote that if he were a member of either the legislature or the executive branch, he would, as a policy matter, work to eliminate the death penalty.
But, he wrote, that is not the job of the judiciary; their sole task is to “pass upon the constitutionality of legislation that has been enacted and that is challenged,” without allowing “personal preferences as to the wisdom of legislative and congressional action” to guide their decisions.17 Though Furman was heavily fractured, its impact was clear: the death penalty was effectively suspended nationwide.
Over the next several years, then, 35 states enacted new death-penalty laws designed to address the Court’s concerns in Furman.18 Four years after Furman, the Court approved three new death-penalty statutes19 but invalidated two others because the statutes imposed mandatory death penalties for specified offenses.20 In each of these five cases, Justice Blackmun accorded great deference to state legislative judgments regarding the proper administration of the death penalty: he voted to uphold all five death sentences, each time explaining his vote with a one-sentence opinion concurring in or dissenting from the Court’s judgment and citing his dissent in Furman.
The Court returned to further consider the constitutionality of the death penalty in 1978. That year, the Court decided Lockett v. Ohio,21 which held that an Ohio statute was unconstitutional because it did not permit the jury to consider mitigating factors in deciding to impose a death sentence.22 There, Justice Blackmun voted against imposing the death penalty. Justice Blackmun concurred in part and in the judgment, writing that he would have struck down the statute because it permitted a jury to impose a capital sentence for aiding and abetting murder, without requiring consideration of mitigating factors or of the abettor’s intent in the commission of the murder.23 Justice Blackmun found this to be fundamentally inconsistent with general principles of criminal-law jurisprudence, which had always required a focus on the defendant’s intentions. Again, we see a fundamental belief in a system, but only when the foundations of that system are honored.
Lockett is now widely viewed as being irreconcilable with Furman in the following respect: Furman requires that the discretion to impose death must be closely confined, while Lockett requires that the discretion not to impose death must be unlimited.24 In the death-penalty cases after Lockett, Justice Blackmun’s decisions followed a pattern of focusing in greater detail on the facts of each case, trying to apply the conflicting precedents, and ignoring the inherent difficulties of the legal standard.25
Consolidating His View
Justice Blackmun’s death-penalty decisions also included unusually personal remarks.26 In Sawyer v. Whitley,27 for example, Justice Blackmun noted his “deep moral reservations”28 to the death penalty, which he regarded with “ever-growing skepticism.”29 This sort of language harks back to his 8th Circuit decisions on the death penalty and to his dissent in Furman:
I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds.30
Yet during this time period, Blackmun clung to the belief that, if procedural safeguards were in place and if competent actors in the justice system adequately performed their assigned tasks, the question whether to offer the death penalty as a punishment was properly reserved for the legislature.
But in Blackmun’s view, the Court itself had started to remove some of those safeguards. The Court was constantly narrowing the scope of habeas review in criminal cases, making it ever more difficult for a defendant to establish that his or her constitutional rights had been trampled upon.31 And we now know that, during this time, Justice Blackmun began writing an opinion in which he would finally take the position that the death penalty, as presently administered, was unconstitutional; Blackmun was just waiting for an appropriate case to come before the Court in which he could take that position.32 Then, as always, Justice Blackmun thought the facts mattered, and he waited for the right facts to be presented.
Those facts came in Callins v. Collins.33 Callins was a 20-year-old, black, unemployed high-school dropout who was sentenced to death for killing a man during the course of a robbery. The defendant argued that he was not permitted to introduce certain mitigating evidence that might have persuaded the jury to return a sentence other than death, and that his conviction and sentence—rendered by an all-white jury—were tainted by racism. The Court denied the defendant’s petition for certiorari. Justice Blackmun dissented.34 As always, Justice Blackmun started with a focus on the young man before him:
On February 23, 1994, at approximately 1:00 a.m., Bruce Edwin Callins will be executed by the State of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.35
Blackmun went on to express his hope that all the actors within the justice system would act competently and without bias. Still, though, Blackmun remained concerned that the system could not operate fairly even in the face of such competence:
[E]ven if we can feel confident that these actors will fulfill their roles to the best of their human ability, our collective conscience will remain uneasy. Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, […] and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.36
Justice Blackmun was most concerned about the Court’s opinions continually narrowing the grounds on which a death penalty defendant could obtain habeas review, “‘erect[ing] unprecedented and unwarranted barriers’ to the Federal Judiciary’s review of the constitutional claims of capital defendants.”37 He described how he had for many years tried “to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor,”38 and he ultimately concluded with one of his most famous quotes:
From this day forward, I no longer shall tinker with the machinery of death.39
Strikingly, although Justice Blackmun personally opposed the death penalty, he showed great deference throughout his career to state legislatures that had sanctioned its use. Justice Blackmun repeatedly emphasized his view that while the death penalty is not
per se unconstitutional under the 8th Amendment, state and federal officials must exercise great caution to ensure that the death penalty is not imposed in a seemingly arbitrary way. At the end of his time on the bench, Justice Blackmun concluded that this was a futile endeavor:
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.40
Throughout his tenure, Justice Blackmun remained open to the evidence presented to him, and always gave it appropriate deference.
Lessons for Today
So what can Justice Blackmun’s evolving jurisprudence teach today’s practitioner? For our system to function effectively, it is important to give due deference to the institutions in which we work, recognizing each player’s unique role in that system. But one should only give the deference that is due. When the system fails to meet its mission, it is our job as members of that system to challenge those failures. And one must keep an open mind, always reevaluating whether the system is working.
Finally, whether we represent corporations, private citizens, government institutions, or criminal defendants, our work affects real people. For that reason, we must always consider the facts before us in crafting our arguments, advising our clients, and making our decisions. In these respects, Justice Blackmun can continue to serve as a model for the entire legal profession.
Melissa M. Weldon is a commercial litigator and a partner at Larson · King, LLP. Ms. Weldon was one of the first Harry A. Blackmun scholars during her time as a law student at the University of Minnesota. In addition to her litigation practice, she serves on the board of directors for the History Theatre in downtown St. Paul.
Paul M. Shapiro is a litigation associate with Larson · King, LLP. Mr. Shapiro earned his J.D. from the Georgetown University Law Center.
1 Feguer v. United States, 302 F.2d 214, 217 (8th Cir. 1962).
2 Id. at 255.
3 Id. at 217.
4 398 F.2d 138 (8th Cir. 1968).
5 Id. at 141-48.
6 Id. at 147.
7 404 F.2d 571 (8th Cir. 1968).
8 Id. at 572.
9 Id. at 579.
10 Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of certiorari).
11 See, e.g., Witherspoon v. Illinois, 391 U.S. 510, 523 (1968) (invalidating, on 6th Amendment and Due Process grounds, a state statute that provides grounds for the dismissal of any juror who has “conscientious scruples” against capital punishment: “Whatever else might be said of capital punishment, it is at least clear that its imposition by a hanging jury cannot be squared with the Constitution.”).
12 408 U.S. 238 (1972).
13 Id. at 411 (Blackmun, J., dissenting).
14 Id. at 406 (Blackmun, J., dissenting).
15 Id. at 406-07 (Blackmun, J., dissenting) (citing Maxwell, 398 F.2d at 153-54).
16 Id. at 408 (Blackmun, J., dissenting).
17 Id. at 411 (Blackmun, J., dissenting).
18 Malcolm L. Stewart, “Justice Blackmun’s Capital Punishment Jurisprudence,” 26 Hastings Const. L.Q. 271, 279 (1998).
19 Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976).
20 Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976).
21 438 U.S. 586 (1978).
22 Id. at 606-09.
23 Id. at 613 (Blackmun, J., concurring).
24 Callins, 510 U.S. at 1141-42 (Scalia, J., concurring in denial of certiorari) (internal citations omitted).
25 Martha D. Pearson, “Revelations from the Blackmun Papers on the Development of Death Penalty Law,” 70 Mo. L. Rev. 1183, 1190 (2005).
26 Id. at 1190-91.
27 505 U.S. 333 (1992).
28 Id. at 358.
29 Id. at 351.
30 Furman, 408 U.S. at 405.
31 See, Stewart, supra note 18, at 296-304.
32 See, Pearson, supra note 25 at 1197.
33 510 U.S. 1141 (1994).
34 Id. at 1143 (Blackmun, J., dissenting from denial of certiorari).
35 Id. (Blackmun, J., dissenting from denial of certiorari).
36 Id. at 1143-44 (Blackmun, J., dissenting from denial of certiorari) (internal citations omitted).
37 Id. at 1158 (Blackmun, J., dissenting from denial of certiorari) (quoting Sawyer v. Whitley, 505 U.S. 333, 351 (1992) (Blackmun, J., concurring in judgment)).
38 Callins, 510 U.S. at 1145 (Blackmun, J., dissenting from denial of certiorari).
39 Id. (Blackmun, J., dissenting from denial of certiorari).
40 Id. at 1145 (Blackmun, J., dissenting from denial of certiorari).