Scalia's Defense of the Death Penalty Is in Tatters

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Supreme Court Justice Antonin Scalia speaks at an event sponsored by the Federalist Society at the New York Athletic Club in New York October 13, 2014. Darren Ornitz/Reuters

In 1994, the Supreme Court denied the last-minute appeal of a man sentenced to die by the state of Texas. It gave Justice Antonin Scalia an opportunity to call for the killing of an innocent man.

Justice Harry A. Blackmun wrote a dissenting opinion, arguing that execution by lethal injection was cruel and unusual punishment and therefore unconstitutional. Blackmun wrote,

Bruce Edwin Callins will be executed [tomorrow] 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...will behold Callins...strapped to a gurney, seconds away from extinction. Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the...task of determining whether some human being is to live or die....

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...challenge, the death penalty remains fraught with arbitrariness, discrimination...and mistake....

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored...to develop...rules that would lend more than the mere appearance of fairness to the death penalty endeavo.... Rather than continue to coddle the court's delusion that the desired level of fairness has been achieved...I feel...obligated simply to concede that the death penalty experiment has failed.

Justice Scalia filed a scathing rebuttal to Blackmun:

Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern.

The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat.

How enviable a quiet death by lethal injection compared with that!

Scalia was referring to the case of Henry Lee McCollum, a North Carolina man who was convicted of the brutal rape and murder of Sabrina Buie, age 11, and his half brother Leon Brown, who was convicted as an accessory.

McCollum and Brown confessed under interrogation and were found guilty by a jury. McCollum was sent to death row; Brown received a life sentence.

If ever there was a case that warranted the death penalty, Scalia argued, this was it.

The only problem is that they didn't do it. In September, a judge ordered them released.

The New York Times reported:

Thirty years after their convictions in the rape and murder of an 11-year-old girl in rural North Carolina, based on confessions that they quickly repudiated and said were coerced, two mentally disabled half brothers were declared innocent and ordered released Tuesday by a judge here.

The case against the men, always weak, fell apart after DNA evidence implicated another man whose possible involvement had been somehow overlooked by the authorities even though he lived only a block from where the victim's body was found, and he had admitted to committing a similar rape and murder around the same time....

No physical evidence tied Mr. McCollum or Mr. Brown, both African-American, as was the victim, to the crime. But a local teenager cast suspicion on Mr. McCollum, who with his half brother had recently moved from New Jersey and was considered an outsider.

After five hours of questioning with no lawyer present and with his mother weeping in the hallway, not allowed to see him, Mr. McCollum told a story of how he and three other youths attacked and killed the girl.

"I had never been under this much pressure, with a person hollering at me and threatening me," Mr. McCollum said in a recent videotaped interview with The News & Observer. "I just made up a story and gave it to them so they would let me go home."

MSNBC's Steve Benen reported that the governor has now issued a full pardon to both brothers. North Carolina's News & Observer reported:

Gov. Pat McCrory on Thursday pardoned two half-brothers who were exonerated of murder after spending three decades in prison.

The governor took nine months to make the decision, saying he thoroughly reviewed the pardons sought by Henry McCollum and Leon Brown.

The brothers have spent the vast majority of their lives in prison—McCollum on death row—and are struggling to make ends meet and reintegrate to society.

The pardon makes them eligible for $50,000 in compensation from the state for each year they were wrongly imprisoned, but it's capped at $750,000—half of what they'd otherwise be entitled to for the last 30 years.

Justice Scalia has not commented on whether he still thinks McCollum's "quiet death by lethal injection" would have been an "enviable" fate, or if he will, in the words of Justice Blackmun, still "tinker with the machinery of death."

Daniel Bier is the editor of the blog Anything Peaceful on the Foundation for Economic Education website, which is where this article first appeared.