In 1994, the late Justice Harry Blackmun put his fellow Supreme Court justices on notice that he would no longer vote to uphold the execution of a condemned person. In a strongly worded dissent in the case of Callins v. Collins, Blackmun wrote: “From this day forward, I no longer shall tinker with the machinery of death. For more than twenty years I have … struggled … to develop … rules that would lend more than the mere appearance of fairness to the death penalty. … Rather than continue to coddle the Court’s delusion that … fairness has been achieved … I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”

In his dissent, Blackmun, who voted with the majority in 1976 in the Gregg v. Georgia case which upheld the constitutionality of the death penalty, finally gave up on the court’s ability to reconcile the constitutional protections of the Eighth Amendment’s prohibition against cruel and unusual punishment and the government’s used of the death penalty. He wrote, “[P]erhaps one day this Court will develop procedural rules or verbal formulas that actually will provide consistency, fairness, and reliability in a capital sentencing scheme. I am not optimistic that such a day will come.”