Tinkering with the machinery...

The most recent book I've read is Becoming Justice Blackmun by Linda Greenhouse. As a preliminary matter, I would highly recommend this book to anyone who wishes to get a closer look at the workings of the Supreme Court (the branch of our government with the most gravitas). Becoming Justice Blackmun is an absolutely terrific book that peruses the voluminous notes of one of the most influential (and controversial) Justices in history. Thanks to his democratic and populist convictions, he has released detailed notes on essentially his entire life. Although there’s nothing terribly earth-shattering about the notes (he was quite eloquent in expressing his views even before his death), they’re extremely interesting as a reflection of some of the splits in the court, and as a roadmap to his own evolving jurisprudence.

Some would accuse a judge whose opinions had developed and changed over time of being an “activist judge” or other mean-spirited euphemisms, but I think those who do so are (maybe only subconsciously) merely striking out at their own fears - of change, of the real world (which is nothing like what they wished for themselves). I digress.

As I was saying, one aspect of his jurisprudence which I found to be highly agreeable to me is that of capital punishment. The Justice was personally against the death penalty, but did not find any inconsistency with the Constitution to authorize the states to impose it within the other constraints of the Constitution. However, after years of dealing with death penalty cases, he became convinced that the process of imposing capital punishment on criminal defendants was too imprecise and arbitrary to pass Constitutional muster. In a famous dissent of his, Justice Blackmun encapsulated this view and proclaimed that he "no longer [would] tinker with the machinery of death."

This brings me to what triggered this extensive rant -- in the Virginia courts, a man fights for his life by trying to prove that he's so intellectually stunted that he can't be put to death. CNN article; Atkins v. Virginia, 536 U.S. 304 (2002). I do not argue with the essential rationale behind the Supreme Court decision, I suppose. However, a group of Virginians must decide whether or not a tragically stupid person will live or die based upon nothing more than vague instructions from the court system of the meaning of "retarded." The stark facts of the case show exactly how tortured our capital punishment system has become under three decades of "tinkering."

I do not believe that deterrence is increased in States with capital punishment - just look at the statistics - nor is community protection increased where life imprisonment is imposed. And the fact is that it's less expensive to keep someone locked away for life than it is to pay teams of lawyers to deal with the mandatory and elective appeals that come with our capital punishment system. The sole reason to impose capital punishment in America is simple: vengeance. Vengeance can serve a valuable purpose for the victims, but how many borderline cases must we arbitrarily decide before we ask ourselves what price we pay for our vengeance?