McGlaun 1 The Flaw in Blackmuns Dissenting Opinion Introduction During the Constitutional Convention of 1787, the Founding Fathers

of our nation convened to address the issues that surrounded the first Constitution of the United States of America, the Articles of Confederation. The main drawback of the Articles revolved around the weak framework of government they created. After two years, in 1789, the new U.S. Constitution went into effect, which established a stronger federal government, and since then, this Constitution has provided the Law of the Land.1 During the Constitutional Convention, the Founding Fathers found themselves in a difficult situation: to grant the people freedoms denied to them in England, but also to embody a strong government to provide a functional democracy. The Supreme Courts website says, The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of the citizens; it permits a balance between societys need for order and the individuals right to freedom.2 Because of the Constitutions unique balance, it embodies characteristics of adaptability, but the main beauty the framers fashioned into the Constitution is the freedom of interpretation bestowed to the justices of the Supreme Court. The justices possess the extremely intricate and demanding duty of interpreting the Constitution, with consideration to the Founding Fathers original intent when they drafted the document. The Court receives approximately 10,000 petitions for a writ of certiorari each year [and] the Court [only] grants and hears about

Office of the Historian. "Milestones: 1784-1800: Constitutional Convention and Ratification, 1787-1789." Office of the Historian. U.S. Department of State of the United States of America, n.d. Web. 9 May 2013 2 "The Court and Constitutional Interpretation." Supreme Court of the United States. Supreme Court of the United States, n.d. Web. 9 May 2013.

McGlaun 2 75-80 cases3 that specifically question federal law and the constitutionality of lower courts rulings. Because of the limited amount of cases taken by the Court, the subject matter of each accepted cases renders an important decision to the country, especially because each Supreme Court decisions determine the Law of the Land. One of the difficult issues the justices visit from time to time is the constitutionality of capital punishment, especially in light of the Fifth and Eighth Amendments. In a dissenting opinion by Harry Blackmun in Callins v. Collins, Blackmun renders his view of the death penalty, that the death penalty cannot be administered in accord with our Constitution,4 namely because when a criminal court issues the punishment of death, the requirements of fair and consistent and inndividual sentencing lack satisfaction. He continues by asserting that the two requirements maintain an inverse relationship, and therefore, a step toward consistency is a step away from fairness5. In this paper, I will argue that Blackmun made a mistake in his reasoningthat fairness and consistency and individualized sentencing are unobtainable togetherby revealing that both requirements can in fact be met. II. Blackmuns Argument Explained In the first paragraph of his dissent, Blackmun clearly wishes to portray capital punishment as inhumane by appealing to pathos with phrases such as, will carry the instrument of death, the purpose of killing a human being, and seconds away from extinction6.Blackmun even implies

"Frequently Asked Questions." Supreme Court of the United States. Supreme Court of the United States, n.d. Web. 9 May 2013. 4 Barnet, Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 648. Print. 5 Barnet, Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 648. Print.
6

Barnet, Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 645. Print.

McGlaun 3 that with every execution, justice comes to a halt, and after the execution the memory of the defendant will vanish and the wheels of justice will churn again7. He proceeds in his opinion by drawing on Furman v. Georgia, that the Court declared that the death penalty but be imposed fairly, and with reasonable consistency, or not at all [and] without comprising an equally essential component of fundamental fairness: individualized sentencing8. He defines fair as a capital sentencing scheme must treat each person convicted of a capital offense with that degree of respect due the uniqueness of the individual9, and consistence requiring the death penalty be inflicted evenhandedly, rather by whim, caprice, or prejudice10. In his opinion, the court fails to meet both of these requirements demanded by Furman v. Georgia, not because of a lack of effort, but because no avenues allow for an even balance of both. He acknowledges that state legislatures and appellate courts have attempted to create procedural rules, regulations, definitions for the deserving, and mandatory rules in order to achieve the requirements of Furman v. Georgia, but to no avail: Blackmun says, Unfortunately, all this experimentation and ingenuity yielded little of what Furman demanded11. With all of the empty solutions, Blackmun decides that Experience has shows that the consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death. A step toward consistency is a step away from fairness,12 and in addition, The consistency promised

Id.

8Barnet,

Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 646. Print. 9 Id. 10 Id. 11 Barnet, Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 647. Print. 12 Barnet, Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 648. Print.

McGlaun 4 in Furman and the fairness to the individual demanded in Lockett are not only inversely related but irreconcilable in the context of capital punishment13. Because of these reasons, Blackmun concludes: this means accepting the fact that the death penalty cannot be administered in accordance with our Constitution. Essentially, Blackmun argues that if the death penalty is imposed both fairly and consistently and without jeopardizing individualized sentencing, then administering the death penalty is constitutional; but the death penalty cannot be imposed both fairly and consistently and without jeopardizing individualized sentencing. Therefore, administering the death penalty is not constitutional. Intuitively, Blackmuns argument seems without flaw, but he fails to think of one solution. III. Blackmuns Argument Exposed Blackmuns flaw in his dissenting opinion of Callins v. Collins in concluding that fairness and consistence and individualized sentencing cannot be satisfied together, is that he overlooks that consistency can be achieved with each fair and individualized sentencing decision that results in the death penalty. So, if each jury, in each criminal courtroom across the nation, decides on the death penalty fairly and as an individualized sentence, then the juries have achieved consistency across the nation, and the requirements of Furman are satisfied. If Furman were applied to the classroom, then an analogy of this would be a professor grading papers. A professor must give an individualized grading score and grade each paper fairly while maintaining consistency in grading for the entire class. Giving individualized grading scores means that the professor cannot grade student As paper in comparison to Student Bs paper because Student B may write more eloquently and expressively than Student A, and if
13

Id.

McGlaun 5 the professor compared the students papers to one another in order to determine a grade, that would provide a comparative grading system, which is unfair. To remain fair during the grading process, the professor must keep the same standards for each student. So, if Student B writes more eloquently than Student A, but Student A still demonstrates and accomplishes a proper and correct analysis or answer in his paper, Student A cannot receive a lower grade because his paper was not as well-worded as Student Bs. Doing so would be unfair grading. If the professor accomplishes both of these things, namely individualized and fair grading, then the professor has achieved consistency in his grading for the entire class. Some critics may disagree with my assessment of Blackmuns mistake, by agreeing with him when he says, that the decision whether a human being should live or die is so inherently subjective, rife with all of lifes understandings, experiences, prejudices, and passions, that it inevitably defies the rationality and consistency required by the Constitution14. This criticism would insist the above reasoning is incorrect because it does acknowledge the setback or hurdle of subjectivity when the jurors assess the death penalty, but that criticism fails because that would be like saying that not only is the punishment phase subjective, but also that the guiltinnocence phase is subjective because each phase depends and relies on the presentation of evidence, a burden of proof, and a juries decision. During the guilt-innocence phase of a trial, the State presents evidence and examines witnesses and the defense may object to the evidence and cross-examine each witness. After the presentation of evidence and the examination of witnesses, the presiding judge reads the charge and reminds the jury that the defendant may be found guilty if and only if the State has proven its

14

Barnet, Sylvan, and Hugo Bedau. "The Death Penalty: Is It Ever Justified?" Current Issues and Enduring Questions. 8th ed. Boston: Bedford St. Martin's, 2008. 648. Print.

McGlaun 6 case beyond a reasonable doubt, which means the burden of proof is beyond a reasonable doubt and that burden rests on the State. After the closing arguments, the jury leaves the courtroom to deliberate, and in their deliberations, the judge explicitly states that only the evidence may be taken into consideration when assessing guilt or innocence, not personal opinions, prejudices, or experiences. Once the jury reaches a verdict, and if that verdict is guilt, then the defendant may go to the judge or jury for punishment. Which option the defendant chooses does not matter because a process similar to the guilt-innocence phase occurs. The State once again presents its evidence and questions witnesses, which again, the defense may object to and cross-examine. During the punishment phase, the burden of proof varies from each state, but in Texas, for the death penalty, the burden of proof is the jury must believe the defendant possess a serious enough future danger that death is necessary. The state does not matter because each state that allows the death penalty still maintains its own burden of proof to assess death as the punishment. After the closing arguments, the jury once again leaves the courtroom to deliberate and the judge reminds the jury that only the evidence and witnesses testimony may be taken into consideration, not personal opinions, prejudices, or experiences. In each phase of trial, guiltinnocence and punishment, the jury is to base their decision on the evidence and witness testimony, making sure that the burden of proof, which rests on the state, has been met, and without personal opinion, prejudice, or experience. In each phase, the decision must not be a subjective one. So, if a critic concluded my argument is wrong because it fails to acknowledge that the assessment of death as a punishment is subjective, I would respond that they are implying the entire trial process is subjective.

McGlaun 7

IV. Conclusion The justices of the Supreme Court possess a difficult duty: to interpret the Constitution like the Founding Fathers would see fit. Each year, they are given this unimaginable task; where they must abandon their own personal opinions, prejudices, and experiences in order make fair decisions that provide the Law of the Land. Of course the justices are not perfect and their decisions are not perfect. For instance, justice Harry Blackmuns dissenting opinion in Callins v. Collins possesses makes a mistake in his argument. He argues that the death penalty cannot be administered in accordance with the Constitution because it can not be imposed fairly and consistently without jeopardizing individualized sentencing because these requirements maintain an inverse relationship. In response, I argue that the requirements can indeed be satisfied because if each jury, in each courtroom across the nation, assesses the death penalty by looking at only the individuals case fairly, the nation succeeds in imposing the death penalty consistently. Blackmun does not acknowledging this flaw in his written opinion.