Depraved Justice (Scalia)

[H]e cited this particular case in the decision on Collins v. Collins back in 1994 in which he disagreed with Justice Harry Blackmun on the constitutionality of the death penalty. This was the famous case in which Justice Blackmun disavowed his former support for capital punishment and declared that he would no longer “tinker with the machinery of death.” Scalia wrote, with characteristic sarcasm:

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!”

Yes, how very enviable. Unless the defendants are innocent, in which case it is as horrifying as the brutal slaying of the victim, particularly after 30 years spent imprisoned in a small cell waiting for the day that he will know in advance he is to die. That alone is cruel and unusual punishment. Not that Justice Scalia sees it that way. (His comments suggest that the methods of punishment should be directly correlated to the luridness of the crime, an antediluvian concept rejected by the Enlightenment-influenced writers of the Constitution he alleges to take so literally.)