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Former U.S. Supreme Court Justice Harry Blackmun’s recently released papers reveal not only his own journey, but the evolution of the entire court’s views on capital punishment. Blackmun joined the court in 1970. Two years later, the court struck down all then-existing death penalty laws. Blackmun dissented and would have upheld them. Four years after that, in 1976, the court reinstated the death penalty, upholding laws from Texas, Florida and Georgia, while striking down laws from North Carolina and Louisiana. Along with then-Justice William H. Rehnquist, Blackmun voted to uphold all of them. Not quite 20 years later, in 1994, in a case involving Texas death row inmate Bruce Callins, Blackmun announced he had given up on the death penalty. In his view, he and the court had tried to make the death penalty system fair, and they had failed. Blackmun’s papers document his reluctant acceptance of the proposition that the courts cannot make the death penalty system fair. It continues to privilege white lives over nonwhite lives; it continues to privilege the wealthy over the poor. “From this day forward,” Blackmun said, “I shall no linger tinker with the machinery of death.” But Blackmun’s papers also illustrate how far the court as a whole moved in the other direction. Under a practice known as the “rule of four,” the Supreme Court will hear a case when four justices believe the case merits the attention of the court. If a death row inmate raises an issue that four justices believe warrants consideration, the court will hear it. There is a wrinkle, however. When a death row inmate has an execution date, it takes five justices to grant a stay of execution. It is therefore theoretically possible that a death row inmate who has an execution date will raise an issue that four justices think should be reviewed by the entire court, yet the inmate will be executed prior to the court’s consideration of the issue because there is no fifth vote to provide a stay of execution. In 1985, Florida was preparing to execute Willie Darden. Blackmun, along with three of his colleagues, voted to hear Darden’s appeal, but there was no fifth vote for a stay. At last, Justice Lewis Powell voted to grant a stay, believing that it would be inappropriate for the state to carry out the execution of an inmate who had raised claims that, under the rule of four, entitled that inmate to a full hearing before the court. In the aftermath of the Darden debacle, Powell suggested that the rule-of-four be modified in death penalty cases, to require five votes to hear an appeal. In contrast, Justice William Brennan argued that only four votes should be required for a stay. Neither justice’s proposal prevailed; the rules stayed as they were. As a result, for his remaining years on the court, Powell continued to provide the fifth vote for a stay when four of his colleagues believed that a death penalty case warranted full review. When Blackmun retired, the court lost its only member categorically opposed to the death penalty. When Powell departed, the court lost its only death penalty supporter who was nonetheless committed to the appearance of fairness. Thus, in the first two months of 2004, five different states executed a total of eight men after their requests for stays of execution were denied by votes of 5-4. In other words, each of these eight death row inmates raised a claim that four justices believed warranted the court’s attention, but no fifth justice provided the necessary additional vote for a stay. There is perhaps nothing uniquely significant about 5-4 votes in death penalty cases. After all, the high court decided the issue of the presidency by a vote of 5-4. In Supreme Court litigation someone has to lose, and on occasion the losing party gets four votes. Sometimes that happens in death penalty cases. The ultimate ‘Catch 22′ Yet the recent spate of executions following 5-4 votes is different. When someone who is not on death row persuades four justices that an issue warrants full consideration by the court, the court hears the case. Even when someone is on death row, as long as he does not have an execution date, all he needs is four votes in order to get a hearing before the entire court. Of the 24 executions that have been carried out in the United States in 2004, more than a third of them have taken place after four justices believed that the death row inmates were raising an important issue that warranted attention from the entire court, but no fifth justice provided the necessary vote for a stay. No justice has been willing to do what Powell did in the Darden case in 1985, and in every other case where the situation arose. Blackmun’s papers indicate that the justices anticipated that the dilemma presented by the Darden case would seldom recur. As we now know, they were wrong. Blackmun ultimately turned against the death penalty because he concluded that the court could not purge it of arbitrariness. There is no greater proof that he was right than the court’s current willingness to permit executions to go forward without reviewing the merits of a death row inmate’s claims even when four of the court’s members believe that those claims should be heard. David R. Dow is the Distinguished University Professor at the University of Houston Law Center and editor of Machinery of Death: The Reality of America’s Death Penalty Regime (Routledge 2002).

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