Hastings Constitutional Law Quarterly


Until his final term on the United States Supreme Court, Justice Blackmun adhered to the view that the Constitution permits the imposition of capital punishment, even though he expressed personal opposition to its use. In Callins v. Collins, however, Justice Blackmun took the position that the death penalty, as currently administered, is unconstitutional. This article traces the development of Justice Blackmun's capital punishment jurisprudence over the course of the Justice's tenure on the Court.

In early cases involving broad, systematic challenges to state capital sentencing regimes, Justice Blackmun consistently showed broad deference to legislative decisions regarding the proper administration of the death penalty. During the 1980s, however, Justice Blackmun expressed growing concern about the manner in which individual capital cases had been litigated. And during his final years on the Court, restrictions on the availability of federal habeas corpus review led the Justice to conclude that no adequate mechanism existed to ensure that errors in capital cases would be detected in a timely fashion.

This article argues that Justice Blackmun was willing to defer to state legislative judgments regarding the manner in which capital sentencing should be conducted, so long as he felt confident that the participants in individual capital trials would perform their duties in a diligent and conscientious fashion. His dissent in Callins rested not on the view that the penalty of death is per se excessive, but on his conclusion that the incidence of error and misconduct in capital cases is unacceptably high.