Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division

Justice Scalia agreed with the denial of certiorari but directly rejected Justice Blackmun's conclusion that capital punishment is unconstitutional. In his view, constitutional interpretation must be governed by the Constitution's text and historical tradition, not by a Justice's intellectual, moral, or personal opposition to the death penalty.

The Fifth Amendment expressly refers to a person answering for a “capital” crime and prohibits deprivation of “life” without due process of law. For Justice Scalia, those provisions plainly presuppose that the Constitution permits capital punishment when imposed with due process; they also foreclose treating the death penalty itself as cruel and unusual punishment under the Eighth Amendment.

Justice Scalia acknowledged a genuine conflict within the Court's modern death-penalty doctrine. Furman requires sharply guided discretion to prevent arbitrary imposition of death, while Lockett and Eddings require broad discretion to consider all mitigating evidence and extend mercy. But he regarded both requirements as judge-made rules lacking textual and historical support.

From that conflict, Justice Scalia drew the opposite conclusion from Justice Blackmun's. If judicially created doctrines make the Constitution appear to prohibit a penalty that the Constitution's text expressly contemplates, then at least one of those doctrines must be wrong; the solution is not to declare the death penalty unconstitutional.

Finally, Justice Scalia maintained that the democratic process may choose capital punishment for deterrence or retribution. He argued that the Court should not manufacture constitutional contradictions that prevent the people from imposing death sentences for especially brutal murders.

Justice Blackmun dissented from the denial because he concluded that the death penalty, as administered in the United States, cannot satisfy the Constitution. He described Callins's impending execution to emphasize that a capital case concerns not an abstraction, but the State's irreversible decision to kill a human being.

In Justice Blackmun's account, Furman requires death sentences to be imposed rationally, consistently, and free from arbitrary discrimination. At the same time, Woodson, Lockett, and Eddings require individualized sentencing: the sentencer must be able to consider every relevant aspect of the defendant's character, record, offense, and mitigating evidence, including reasons for mercy.

Those demands are irreconcilable in practice. Rules strict enough to produce consistent, objective outcomes constrain the individualized mercy that the Eighth Amendment requires; rules broad enough to permit individualized mercy necessarily leave room for subjective, arbitrary, and discriminatory choices. The Texas special-issue scheme examined in Penry illustrated the problem: its effort to channel discretion prevented jurors from giving full mitigating effect to evidence of mental retardation and childhood abuse.

Justice Blackmun rejected the idea that narrowing the class of people eligible for death solves the problem. Even after objective aggravating criteria identify a smaller group, the final decision about who deserves to die remains deeply subjective. He also stressed evidence, including the Baldus study discussed in McCleskey, that race—especially the race of the victim—continues to affect capital-sentencing outcomes.

He further believed that the Court had retreated from the safeguards that once made capital punishment tolerable to him. The Court had permitted vague aggravating factors, restricted defendants' ability to present or obtain effect for mitigating evidence, and imposed increasingly severe barriers to federal habeas review. Those barriers were particularly alarming because factual and legal error can result in the execution of an innocent person.

Justice Blackmun therefore concluded that no workable combination of procedural safeguards can ensure the fairness, consistency, and reliability required before the State takes a life. Rather than continue to “tinker with the machinery of death,” he would recognize that the constitutional experiment had failed and would treat the death penalty as currently administered as unconstitutional.