Chapter 10 Chapter VII Opponents of the Death Penalty

In the early 1980s, the Berg Court began to falter.Berg's management style made Blackmun so angry that he didn't even bother to hide his dissatisfaction.This tension has actually been brewing for years. In the late 1970s, Blackmun was interviewed privately twice by Scott Armstrong, who later co-wrote "The Brethren" with Bob Woodward.As soon as the best-selling book came out, it caused a lot of controversy because it severely criticized Berger's leadership and made the chief justice fly into a rage.Blackmun also privately approved two departed clerks to speak with Armstrong and Woodward.He never told the other justices that he had cooperated with reporters, although more than one justice has opened the door to reporters and told them all.

Apparently, Blackmun wasn't the only member of the Supreme Court angered by Berger.Many issues are old accounts. In June 1975, near the end of the trial period, several civil rights and criminal cases were still pending.William Rehnquist wrote Berger a letter and copied copies to the other justices.In a slightly literary style, he euphemistically expressed his dissatisfaction with Berger's handling of the internal affairs of the Supreme Court. Dear Chief: Before closing today's meeting, it occurred to me that the closing line of poet Matthew Arnold's poem "Dover Beach" is a good way to describe the current state of our institution. "Fighting, fleeing, panic, confusion/The army of ignorance is fighting to the death." Here, may I suggest that next Monday morning, when the trial is over, can we discuss as soon as possible what we need today, or last week, or even next week? Cases resolved.

During the 1981-82 session, the Supreme Court justices were exhausted by Immigration and Naturalization Service v. Chadha.The case finally proved that Berger's leadership on the Supreme Court was gradually disintegrating, and the conflict between Blackmun and Berger finally broke out after years of overt and implicit friction. Jadish Nai Chadha, a Kenyan citizen, had been in the United States longer than his student visa allowed. In 1974, the Immigration and Naturalization Service heard that he should be deported in this case.However, under federal immigration law at the time, the attorney general had the power to suspend deportation with leniency as long as the foreign national concerned was of "good character" and the deportation would put them in "extreme hardship."Chadha just met the above conditions. Not only was his deportation suspended, but he was also given the opportunity to apply for permanent residency.However, he still has a bigger difficulty to overcome.Because the U.S. Congress has included a "legislative veto" (legislative veto) clause in the immigration law, any vote in the Senate and House of Representatives can revoke the Attorney General's decision to suspend deportation. In late 1975, the House of Representatives overruled the Attorney General's decision to suspend Chadhar's deportation after the House Judiciary Committee's Subcommittee on Immigration reviewed 340 similar cases and selected five, including Chadhar's, as not providing enough evidence. Evidence to prove that he may fall into "extreme predicament".

Chadha would therefore have to be deported the following year, and he was forced to file a lawsuit challenging the legality of Congress' intervention.He argues that the Constitution gives Congress only one avenue for executive legislative authority: bills passed by both chambers and sent to the president for approval or veto.Under the constitutional system, there is no "legislative veto" at all. The federal appeals court upheld his appeal, declaring that the "legislative veto" violated the constitutional principle of separation of powers. The case went unnoticed by the general public, but it raised a crucial conundrum within the government. Since 1932, Congress has bound the "legislative veto" to more than 200 laws. Some matters need to be approved by both houses at the same time, and some matters, like Chadha, can be vetoed by one house .Political science scholars have long been aware of this problem and have been waiting to see the good news.Before this case, however, only academics were interested in the topic.Obviously, Congress wants to take the opportunity to expand its power.What's more, the "legislative veto" gives lobbyists and special interest groups a very important opportunity to continue to exert influence on government decision-making after the executive decision is made.For example, a natural gas pricing decision by the executive branch can be revoked with only one vote in either house.And if both houses say "no" at the same time, an international trade regulation will be immediately aborted.

At the beginning of the court session in 1981, the justices decided to accept the "Chadhar case". For Blackmun, the answer was simple: the "legislative veto" was unconstitutional, and the Supreme Court did not consider what kind of political impact the judgment would bring within the scope.But of course the way the Supreme Court handled the case couldn't be so simple.Despite the eager anticipation of the verdict, it took the Supreme Court more than 20 months to settle internal disputes. In February 1982, at an internal meeting held after the trial, a heated debate ensued.Rehnquist argued that the Supreme Court should never have taken up such a case and that it was an "unfortunate disaster" to hear such a case. He believed that repealing the "legislative veto" would seriously "impair the actual functioning of government." Marshall He pointed out that "it is long overdue to challenge such regulations." Congress vetoed the Attorney General's decision and exercised the power of a judge. "The Constitution does not give Congress such authority at all." Tricky, but also very important.He did not comment on how to vote.According to Blackmun's tally, five votes agreed to uphold the appeals court decision: himself, Marshall, Brennan, Powell and Stevens.At the end of the meeting, no one was assigned to write the majority opinion.

Trouble arose the next day, when, on February 25, Powell sent a memo to Berger, with copies copied to the other justices. "I share your concern about the one-house veto," he said. "The executive branch and the legislature have peacefully coexisted with this type of authority for decades. Avoid this issue. I would welcome that. However, this issue is very important to the country and deserves to be discussed in depth." Brennan was quick to respond, arguing that a sentencing should be made sooner, "to resolve the years-long dispute between the executive branch and Congress over the 'legislative veto' clause." Powell, however, was not so easily dealt with. On March 9, he circulated another memorandum, which said: "After further consideration of this annoying case, I am inclined to reconsider it." , could be combined with another just-delivered decision by an appeals court in which it invalidated a one-vote rejection of a natural gas pricing agreement.Powell believes: "Cases such as these, which are related to the basic structure of our government, deserve more time to think deeply and are also conducive to solving other similar cases."

Blackmun's clerk, Hongzhu Koo, advised him not to let Powell get his way.Gao Hongzhu submitted a 5-page memorandum to Blackmun, which analyzed the handling of this case.Blackmun made a brief amendment and sent the memorandum to the chief justice.Blackmun emphasized that the core of the case is that Chadha has been unidentified for nine years. He said: "We should make a decision as soon as possible to give him and the government an account." Berger's recommendation for a special meeting on Saturday, March 13 would amount to an endorsement of Powell's proposal to reopen the case.A motion to reopen a case must be approved by all five justices.The reason for this provision is to prevent a small number of people from taking the opportunity to delay the judgment.Brennan objected to calling a special session. He pointed out that the Supreme Court did not put the appeal case mentioned by Powell on the agenda at all. The so-called further discussion is "a complete waste of my time." Brennan believes that, After the Supreme Court deliberates, it should issue a judgment directly.Stevens also didn't feel the need to discuss it twice.However, Rehnquist, O'Connor and White all supported the reconsideration, but White said he was too busy Saturday to attend.Berger had to cancel the special meeting.

On Monday, the chief justice circulated a memo: "When we first met to consider this case, I mentioned that it is a difficult case and will take up a lot of our time. That's why I think that further discussions It may help to conclude the case as soon as possible. Although five or six justices seem to have a clear idea, as of now, I have not figured out their position." He added: "It is difficult for me to understand why everyone feels Is this case under time pressure?" He decided to postpone the case to the next court session. In fact, it was Berger himself who backed off.Compared with the past, his style has changed a lot.In the past, he would preemptively circulate his own opinion, as he did in the "Bakke case."But now, he was obviously a little bit powerless.He simply does not have the ability to lead the Supreme Court, the most important case in a decade, just let it go.Two months later, near the end of the trial period, Berg circulated the list of cases to be sentenced. On June 25, Blackmun sent Berger a memo reminding him that the "Chadhar case" was missing from the list. Blackmun pointed out that so far, no one has formally voted on whether to reopen the case."I want the public record to show that I am against this," he said.

Berg replied on the same day: "There have been 5 votes in the meeting to delay the sentence, but I am not sure if this is a 'formal' or 'final' vote. Everyone knows that the case cannot be concluded so quickly. You should remember , I have already suggested a special meeting to discuss it, but no one paid any attention to it at all.” These internal disputes in the Supreme Court are naturally unknown to the outside world. On July 2, 1982, the last day of this court session, everyone thought that the "Chadha case" would be sentenced on this day.However, the judgment that day did not include this case.On the pending case list released later, it was announced that the "Chadhar case" was "postponed" and "Brennan and Blackmun dissented"

In December 1982, the justices reconsidered the "Chadhar case" and finally reached a decisive vote: 7 votes to 2 votes. Most justices ruled that the "legislative veto" was unconstitutional, and only White and Rehnquist expressed dissent.Powell joined the majority despite expressing regret that "it took 50 years to touch on this issue."Berger decided to write the opinion himself.However, the internal battle of the Supreme Court did not end there. Four months later, when Berger's first draft opinion was circulated, it focused on reviewing the history of the case. "The difficulty and sensitivity of this case has been demonstrated by the 'friend of the court' submissions filed by all parties, which have been considered twice by the Supreme Court," Berger wrote.For Blackmun, words like "difficulty and sensitivity" just aren't appropriate.He remembers Berg telling him not to take it easy when he was "suffering" in his first year on the Supreme Court trying Palmer v. Thompson, the swimming pool case in Jackson, Mississippi. Compromise with difficulties.Now, he can be sure that the reason why Berger said this is to make an excuse for not being able to conclude the "Chadhar case" in the last session.He suggested to Berger that "Difficulty and Sensitivity" be removed from Section H of the first draft.

Berger rebuffed the crowd's overtures with a formal memo.He wrote in a postscript: "I'm not going to change the wording of Part H as Harry suggests, it's purely my personal style, for the better, or for the worse - probably the latter! But I'm just sticking own style." Offended, Blackmun wrote back: "I suspect that your postscript in your letter of May 27th meant nothing more than 'disregarding' my suggestion, and I can only accept it. But , in my opinion, Part H is not a matter of style at all. If that is the case, I will not disagree. You say that the case has 'difficulty and sensitivity', I admit that these cases are 'sensitive', but not at all Not 'difficult,'" Blackmun concludes, which is why he opposed reopening the case at the time.He enclosed a concurring opinion that reminded the public of internal disputes at the Supreme Court. "The case pronounced today was considered in court before February 1982, and was discussed by all justices." The draft consensus opinion reads. "Reconsideration is unnecessary and only further prolongs the uncertainty in Congress about the questionable constitutionality of federal laws that the Supreme Court could have directly amended by decision." Berg replied the next day: "I'm confused. Where did the problem come from? I said the case was 'twice deliberated', but simply stated a historical fact so that later readers could understand. For example, in 1993 people read In these cases, we will feel that we are not "judging in a hurry" for such an important case." However, he finally chose to make concessions, replacing "difficulty and sensitivity" with "importance". The final text is: " The importance of this case has been demonstrated by the amicus briefs filed by all parties, and it has been considered twice by the Supreme Court." Blackmun was satisfied now. On June 13, he withdrew his majority and joined Berger's. On June 23, 1983, when the case was pronounced, Berg said in the bench that he would like to add a few words.Finally, he told the entire audience in the courtroom: "We all agree that this is a very difficult and very important case." Berg became increasingly irritable and irritable, even prone to unexplained tantrums.Even Rehnquist, who is ideologically close to him, has gradually alienated him. At the beginning of the 1984 session, the Supreme Court took up a case from Oklahoma.At issue in this case is whether indigent criminal defendants suffering from mental illness have the right to be assisted by a psychiatrist to help them plead insanity as a defense.The justices voted 8-1 in favor of the criminal defense, with only Rehnquist dissenting. On February 26, 1985, when the case was pronounced, something weird happened. Berger refused to join the concurring opinion drafted by Thurgood Marshall and issued a concurring opinion separately. The case, known as Ake v. Oklahoma, was actually a death penalty appeal in which the defendant, Grant Burton Ake, was already on death row for double murder.But Marshall hoped that the decision would establish a principle that would make free access to psychiatrists for indigent defendants part of constitutional due process.After Marshall's opinion was circulated, Berger suggested that he limit the assistance to capital cases.Marshall responded: "I have carefully considered your proposal, but I really don't see the need to revise my opinion." He immediately sought the opinions of the other six justices on the majority side, and all of them said that no matter what Marshall chooses, everyone will stand. on his side. "I'm fine with whatever you want," White told him."It's up to you," Blackmun said. After Marshall wrote his opinion on behalf of the seven justices, Berger issued two separate opinions.“The opinion of the Supreme Court has nothing to do with cases other than the death penalty,” he declared. The problem is that, in the vote, it was already assumed that the verdict covered cases other than the death penalty. In the late 1970s and early 1980s, capital punishment cases made a big impression on the justices, and even more so on Blackmun.Since the Supreme Court agreed to restore the death penalty in Greg v. Georgia in 1976, such cases have continued to enter the Supreme Court.Blackmun was once again in a dilemma: From a personal standpoint, of course he was against the death penalty.However, he also understood that the Constitution does not prohibit the death penalty, and as a judge, he has no power to declare the death penalty unconstitutional.In the six years since the Supreme Court reinstated the death penalty, there have never been more than two executions in the United States each year. The justices have gradually excluded certain types of crimes from the death penalty. In 1977, in Coker v. Georgia, the Supreme Court declared, in a 7-2 vote, that it was unconstitutional to execute anyone who raped an adult woman.Blackmun had long argued that executing rapists was inappropriate, but Berg and Rehnquist dissented. In their dissenting opinion, Berg directly cited Blackmun's statement in Furman v. Georgia five years earlier. dissenting opinions.At that time, Blackmun expressed his views on judicial restraint, opposing the justices’ hasty abolition of the death penalty in violation of the original intention of the Constitution based on their personal positions.He said: "What we can't allow is to make judgments arbitrarily based on our personal likes and dislikes of Congressional legislation." It is specially marked that this is an original work by Blackmun, and it is intended to embarrass the original author.Berger also added a paragraph of his own evaluation: "These wise comments, although written a few years ago, are still worth emphasizing here." In the early 1980s, the judicial winds began to shift. Thirty-seven states resumed executions, and by 1983, there were 1,200 death row inmates awaiting execution across the country.Five people were executed this year, and the number increased to 21 in the second year, and death penalty cases appealed to the Supreme Court continued in an endless stream.Many cases require the Supreme Court to urgently issue a stay of execution order before the execution, which is completely outside the normal court process of the Supreme Court.In the 1983 court session alone, there were 86 such urgent applications, some of which were filed by defense lawyers, with the purpose of seeking a chance for the client after exhausting the means of appeal.Some cases can be blamed on hasty courts that have hastily set execution dates without even giving the accused a chance to appeal to the Supreme Court. As the Supreme Court justice who oversees the Eighth Circuit Court of Appeals, Blackmun himself is on the "front line." Each of the nine justices oversees the administration of one or two circuits, including handling emergency stays of executions in their jurisdictions. Apply.Within the jurisdiction of the Eighth Circuit Court of Appeals, the Missouri Supreme Court has the most radical attitude. It often sets the execution date within a few days after the verdict is pronounced, completely ignoring the Federal Supreme Court’s decision that after the final judgment, 90 days should be reserved for the defendant. In order for it to file an application for a censorship review order.Stay applications from death row inmates in Missouri are often sent to Blackmun. Blackmun was once again in the same dilemma as before.A few years ago, while the Supreme Court was hearing death penalty cases such as Furman, Blackmun sat at a typewriter and excerpted passages from the 1948 decision in Haky v. Ohb. The judgment in the "Haley case" was written by Justice Felix Frankfurter, Blackmun's law school teacher.Frankfurt cast the decisive vote in the case, overturning the death sentence for a 15-year-old boy.The boy confessed only because he was interrogated in secret all night.Frankfort emphasized that considering the unclear facts of the case, the defendant cannot be sentenced to death for the sake of prudence. "I am skeptical of the death penalty," Frankfort wrote, "but, as a judge, I cannot claim 'due process' to require all states to abolish the death penalty as individual states do." Blackment quotes himself This sentence is subtitled: "Reference: Death Penalty" and signed with my initials below, not to identify the author, but to show support.Blackmun admired Frankfurt very much and maintained correspondence with him after graduation.The latter passage also inspired him: adhere to the basis of facts to ensure that justice is reflected in every case. In 1983, Blackmun granted a stay of execution for a death row inmate, and in doing so sent a message to the Missouri Supreme Court: He did not support hasty execution dates.However, the Missouri Supreme Court ignored the above information and continued to go its own way. In January 1984, Blackmun granted four stay-of-execution applications from Missouri at one time, all of which were originally scheduled to be executed on January 6.Blackmun issued a blunt statement accordingly: "In the state courts of this country, no matter how heinous the crime committed by a defendant, he has the right to apply for review before he is sentenced to death. Otherwise, the existence of the right of review It would be pointless." He said he would grant more stays of executions as long as death row inmates in Missouri were denied the opportunity to appeal to the Supreme Court. "There are certain responsibilities that should be performed by the state courts. Since you are in your position and not looking for government, it is up to me to perform your duties." In response to Blackmun's statement, the Missouri court had to make adjustments, albeit very slightly.They no longer execute the death sentence during the 90-day application review period reserved by the Supreme Court, but after the death row inmate submits an application for review, the Missouri court will quickly arrange the execution time, and the justice will not be given the opportunity to handle the review case at all. "In a way, it's worse than their previous policy." In a memo circulated to fellow justices in late 1984, Blackmun described to colleagues his "tug of war" with the Missouri courts." They are counting on me to bear all the blame alone, and as such, I will continue to grant a stay of execution as long as they continue to use this tactic." There is a basic consensus within the Supreme Court that after the state Supreme Court finally upholds the death sentence, the defendant has the right to apply to the Federal Supreme Court for "direct review". However, the justices have great differences on how to deal with "indirect review".The so-called "indirect review" means that the death row prisoner, after exhausting all direct means of appeal, asks the federal court to rule that his conviction and sentencing by the state court are unconstitutional.Technically, such challenges are not criminal appeals, but applications for "writs of habeas corpus," which seek protection in federal court, a new hearing, a sentencing hearing, or a chance at liberty. "Habeas corpus" is actually a safety valve for the judicial system. Once the criminal justice mechanism of the state court fails, the federal court can step in.However, state prosecutors and courts have viewed habeas corpus as a gross interference with their work, and some Supreme Court justices have become concerned about the growing role of such writs in capital punishment proceedings. In 1983, the Supreme Court ruled in Barefoot v. Estelle that federal appeals courts could no longer grant applications for writs of habeas corpus from death row inmates after they were denied by a federal district court , Blackmun, Brennan, Marshall disagreed."The federal courts are not the place to review states' cases," Byron White said in the majority opinion. Lewis Powell is responsible for supervising the cases of the Eleventh Circuit Court of Appeals, which has jurisdiction over the three states of Florida, Georgia and Alabama. He and Blackmun are also in the "front line".Powell was very tired of lawyers rushing to the Supreme Court at the last minute to file a large number of "habeas corpus" applications, believing that this had been reduced to "a litigation strategy." can put forward a convincing explanation in the application and prove it, otherwise, if the Federal District Court, the Court of Appeals, and the Supreme Court do not think it is particularly necessary, they can refuse to accept the application for 'habeas corpus'." He suggested that if the lawyer wants to submit Such applications must be made under oath "with convincing reasons" At the end of this session, other justices did not respond to Powell's proposal, but the Supreme Court soon became embroiled in controversy over the application for emergency stay of execution before sentence. A month before the 1985 trial session, and as the justices were preparing to enjoy Labor Day weekend, a stay application was sent to the Supreme Court.The applicant was a Negro named Willie Darden, well known to the justices.According to the schedule, Darden was supposed to sit in the electric chair at 7 p.m. on Wednesday, September 4.The man killed a furniture store owner for $15, forced his wife to perform oral sex on the spot, and then shot a neighbor teen who happened to walk away from the store.Because Darden committed the crime while he was on leave from prison, and the widow and the juvenile were identified in court, in 1974, the court sentenced Darden to death, and the lower federal court rejected his application for a writ of habeas corpus.His lawyers then appealed, hoping the Supreme Court would stay the execution. The justices are familiar with Darden because the case reached the Supreme Court in November 1976 as a "direct review."Four months ago, the Supreme Court just upheld Florida's new death penalty law.Darden believed the prosecutor's closing arguments were too inflammatory and deprived him of his right to a fair trial.Prosecutors called Darden a "brute" in court and said "the guy shouldn't be getting out of jail unless he's on a leash." In March 1977, the Supreme Court heard the case.At the meeting of the justices, everyone agreed that the prosecutor's words were indeed inappropriate, but they were not unconstitutional.Berg thinks the prosecutors acted like a "jumping clown," but since the evidence is solid, even a little deviation in the middle is harmless.Blackmun agrees.He wrote in the pre-trial memo that the prosecutor's "very inappropriate" evaluation did "violate judicial ethics" but "cannot overturn a large amount of incriminating evidence." On April 19, 1977, the Supreme Court cited "improper acceptance" as the Darden's claim was dismissed.The so-called "improper acceptance" includes the following two situations: the grounds for appeal in the application for a review order for censorship are untenable, or there are new circumstances that make the grounds for appeal untenable. Now, Darden's constitutional challenge is back at the Supreme Court.Since his last appeal, several death penalty cases have been decided in his favor by the Supreme Court.This time, he pleaded not guilty.He said that he was not the murderer at all. At that time, he happened to drive into a telephone booth not far from the murder scene.Moreover, the two white victims who identified him could not distinguish the appearance of black people at all.Powell believes the case has been fully discussed and recommends that his application be dismissed again. However, Blackmun's clerk, Pamela Callaran, advised him to grant the stay application.In a 16-page memo, she pointed out, "The point of the problem is not that Darden abused his right to sue, but that the court handled this case too hastily, and the Florida Supreme Court did not fulfill its supervisory responsibility at all." On Tuesday, September 3, 1985, Blackmun, Stevens, Brennan and Marshall voted in favor of granting a stay of execution. 4 votes are only enough to accept the application, but if you really want to suspend the death penalty, you must get 5 votes.At 6:05 p.m., the Supreme Court informed Darden's lawyers that the stay had not been granted.Berger issued a concurring opinion stating that "the issues raised by this application have been carefully considered and resolved by state and federal courts." The last time was to apply for "direct review" and the two had nothing to do with each other. "Since 1976, the Supreme Court has reached a clear consensus on death penalty cases, that is, although the death penalty is constitutional, given its differences from other penalties, special protection should be given to the parties involved." Darden's lawyer learned that four justices supported the moratorium on the death penalty, and quickly sent a letter, hoping that the Supreme Court would accept the case first, and the four justices immediately approved the application.That meant, of course, that after the fall, the Supreme Court would hear an appeal brought by the dead, because by then Darden would surely have been executed. Before midnight on September 3, Powell finally compromised, and he decided to cast the fifth vote in favor of a moratorium on the death penalty.He complained indignantly in the memo: "I did not find any strong arguments in the defendant's application at all. Considering that this is a death penalty case and everyone is scattered and unable to get together to discuss it, I decided to grant a stay of execution. ’” Byron White objected to Powell’s approach.Burger, who also filed a dissent, said: "Looking back at the history of this case, I don't think it deserves to be reviewed by the full justices at all. We denied his motion a few hours ago and now grant a stay of execution." , this is an abuse of our discretion. I object!" The next day, Powell wrote to the full justices: "The events of last night bothered me very much, and probably all of you as well," because it "sufficiently demonstrates how easily our machinery can be manipulated when it comes to the death penalty. Referring to the Supreme Court's system where four people can agree to a case, he said: "The four-vote rule is very easy to exploit, and I am inclined to change the rule, as many have suggested, to change it to the five-vote rule. .” On September 5, Stevens was the first to respond.He explained that the stay of execution order was granted "in part because the defendant wanted the Supreme Court to review the proceedings after his first application for a federal habeas corpus was denied, and we should give him a chance." He said that when the majority When people disagreed with the moratorium on the death penalty, the first thing he considered was Darden's lawyer's proposal to take the case temporarily, which might lead to "improper procedures" but "that lawyer has no other way to go." However, "It is certainly inappropriate to allow the death penalty to be carried out without further review." The next day, Brennan wrote Powell back.He said that now that 60 death penalty cases are pending before the Supreme Court in the next session, "I fully agree with Lewis's proposal to adjust the death penalty process" but, "As an internal management model of the Supreme Court, The four-vote rule is very important." Brennan went on to say: "What puzzles me is how the 4-vote rule was 'used' in the 'Darden case'? The decision made by the four of us last Tuesday was just to accept the case. The danger of being exploited by defense lawyers, let alone being manipulated." Blackmun commented on this passage: "Agreed." Brennan continued: "We should pay more attention to, precisely last Tuesday night What everyone avoids is that the Supreme Court has accepted a person's petition for certiorari and then refused to issue a stay of execution order. Not only will we not be able to bear it, but the public will find it too ironic." Brennan's suggestion is the exact opposite of Powell. He said: "In death penalty cases, we should use the rule of four votes. The Supreme Court need not worry that this will lead to a suspension of a large number of executions. However, when the four justices believe that there is a real possibility of wrongful conviction, the interests of the state must give way The dangers of wrongful executions. If we continue to tolerate states setting execution dates to press us for speedy sentencing, defendants will be deprived of their right to appeal." Blackmun underlined the last sentence and added "Indeed it is," wrote. Then it was Rehnquist's turn, a staunch opponent of the moratorium.He began by criticizing Powell's proposal as a "disappointing departure from the tradition of admissibility of four of the nine members of the Supreme Court." On the other hand, he said that Brennan's proposal would "result in the death penalty cases, four An individual minority is enough to overturn the Supreme Court majority," Rehnquist suggested maintaining the status quo.He said that the "Darden case" is just a special case. "Like others, I am very dissatisfied with the behavior of the defendant's lawyer. He is completely putting the cart before the horse, trying to indirectly achieve the effect of suspending the execution of the death penalty by getting you to agree to accept the case." On September 10, Berger finally responded.He said the justices should discuss the matter at their first plenary meeting of the new session.While Berg agrees with Brennan that "we've been sickened by the inconsistency of the Supreme Court in the past week," he argues that "it's been 13 years since Darden was charged with murder. Any attempt to prove that we 'jumped the case' is sheer nonsense." Berg continued: "To some extent, the state's interest in enforcing a legal sentence is clearly greater than the interest of the death row inmates in exercising the 'right of last appeal' multiple times in order to avoid death. Therefore, we must be clear on what basis Standards, we can grant a stay of execution.” Berger said that even the first application for a writ of habeas corpus does not mean that a stay of execution is automatically granted, because most of these prisoners have already had a chance to appeal to the Supreme Court. The court lodged an application for appeal.In the end, he decided that neither Powell's proposed five-vote rule of approval for a certiorari application nor Brennan's four-vote rule for a stay of death penalty order was likely to work. “如果四个人就能批准一个暂缓死刑命令，是不是也意味着，四个人也能撤销一个暂缓死刑命令呢？”伯格问道，然后补充了一句：“记得伊莉莎白·巴内特·布朗宁写过这么一段诗：'万物如此生成，又如此往复。'”布莱克门在意见空白处写了略带讥讽的评语：“我们的诗人？”。 在此期间，布莱克门忙着撰写自己的回应，并于9月10日提交其他大法官传阅。“在死刑案件中采用5票法则的想法，绝对是有百害而无一利，因为它将意味着，第八修正案对死刑的关注，远远不如我们对其他议题的重视。”布莱克门写道。他还向同事们提到了自己与密苏里州最高法院之间的关系：“我决不允许州最高法院催促我们下判，而且，我与密苏里州最高法院之间也并未因此出现任何麻烦。如果我们能对各州明确表示，联邦最高法院坚持应有充足时间审查死囚首次提交的联邦'人身保护令状'申请，或许能抑制各州通过设定执行时间，强迫我们仓促下判的行为。” 布莱克门谈到，达登的案子确实存在许多问题，而且“他的无罪辩护也并非全无依据。”他“确信”对达登的审判存在“错误”他解释说，自己之所以赞成批准调卷复审令申请，就是为了看看这些错误是不是宪法层面上的问题。对伯格和鲍威尔的行为，布莱克门直言不讳地评价道：“二位，当你们说这起案件没什么价值时，内心已对案件结果做出了判断。如果我是你们，我会等到最后一刻再下结论，而不是刚接触案卷就这么做。” 在这封信的初稿中，布莱克门指出，如果批准调卷令申请，却拒绝暂缓执行死刑，会让人觉得“最高法院的举动非常诡异”但是，助理卡拉朗提出，这样的表述“对于我们真正想要表达的立场，实在过于温和”她建议使用更激烈的措辞，即最高法院面临“智识与道德上的双重破产”布莱克门部分采纳了她的提议，但使用了更为委婉、精确地表达：“我认为在这种状况下批准执行死刑，比起暂缓执行任何一个正确的死刑判决，都会对最高法院的声誉造成极大损害。” 这年十月，新的开庭期开始时，大法官们并未对最高法院内部规则做任何调整。“达登案”被排在1986年1月审理。庭审之后的内部会议上，大法官们一致认为检察官在此案中的表现糟糕透顶。伯格认为，检察官的庭上言论“严重违反”了职业伦理规范，但是，这并不导致审判本身违反宪法。伦奎斯特认为检察官的结辩陈词“荒谬不经，但没有误导陪审团”投票结果为4票对4票。伯格、鲍威尔、怀特和伦奎斯特支持下级法院拒绝发布“人身保护令状”的判决，布莱克门、布伦南、马歇尔和斯蒂文斯支持推翻原判。斯蒂文斯还附加了一句评论：“如果有法律人接受这样的结果，那可真是个悲剧。”资历最浅的奥康纳没有在会议上投票，她表示自己对这个案子仍要深人研究。第二周，她通知伯格，自己支持维持原判。伯格指定鲍威尔撰写多数意见。 1986年春，布莱克门与伯格为“达登诉温莱特案”(Darden v.Wainwnght)的判决意见，又闹得非常不愉快。布莱克门将一份异议意见交大家传阅，里面说“达登质疑定罪与死刑判决的合宪性，可最高法院对此明显有些不耐烦”为增强说服力，他援引了伯格去年九月出具的异议意见。布莱克门的做法再次激怒了伯格，他随即传阅了一份协同意见，并将去年那份异议意见作为附件。伯格说道：“我在异议中已说得很清楚，当事人的申请毫无意义，根本不值得全体大法官审议此案。诉状与言词辩论也无法令我改变立场。某人的异议意见居然说最高法院对达登的违宪质疑有些不耐烦，难道走了13年的诉讼程序，还不能证明我们的细致和耐心吗？”他总结说：“必须尽快结束此事。” 布莱克门回应道，如果伯格真要那么说，自己会在意见里加上一个脚注，作为对他的直接批评。脚注的内容是：“公开反对批准调卷令申请的举动极为罕见。说实话，我还没见过大法官会因为当事人的主张没有价值而驳回人家的申请，毕竟已有四位大法官同意受理此案。”至于伯格附上的异议意见，布莱克门评论说：“首席大法官明明在阅读诉状，听取言词辩论之前，就已决定拒绝受理此案了。”6月16日，布莱克门将脚注内容送伯格审阅：“坦白说，我不愿和你陷人口舌之争，如果你撤回意见，我会删掉这个脚注。” 第二天，伯格宣布自己将辞去首席大法官之职，转任美国宪法两百周年纪念委员会主席。没有证据证明，两位老友就这么重大的人事变动提前交换过意见。恰恰相反，直到前一天，俩人还在为“达登案”的判决意见相互较劲。伯格致信布莱克门说：“我也不想和你争辩，只要你仍然保留那些错误说法，我就必须以事实回应。这样争来争去，没有任何意义。”6月23日，最高法院正式宣判。伯格公布了他的协同意见。布莱克门关于最高法院“不耐烦”的表述，以及载有对伯格批评内容的脚注9，也都赫然在目。布莱克门还评论说，多数方意见“显示了最高法院对程序瑕疵的放纵，对司法不公的容忍，这着实让那些正直勤勉的检察官们心寒”。 “达登案”对布莱克门的刺激很大，他后来经常念叨这起案件。在下月召开的第八巡回上诉法院年度会议上，他告诉出席会议的上诉法院及地区法院法官：“如果说有一个人受到了不公正的审判，这个人就是达登。”布莱克门认为，1985年开庭期是自己进入最高法院16年来“最艰难的一个开庭期”不过，他的异议意见也招致民众的批评，但他并未回应那些接踵而至的批评信件。一名险些在抢劫案中遇害的德州居民写信告诉布莱克门：“你在'象牙塔'里待得太久，还是回到现实世界中来吧。你会惊讶地发现，街上居然有那么多两脚'畜生'，这都是拜你们这样的法官所赐。” 最高法院的判决并没有导致达登被立即执行死刑。他后来又提出过两次联邦“人身保护令状”申请，1988年3月，佛州州长第七次签署死刑执行令后，他再次向最高法院提出暂缓执行申请。这时，达登已经54岁，是美国被关押时间最长的死囚。他的案子甚至成为国际热点，连教皇约翰·保罗二世都曾为他求情。1988年3月7日，最高法院驳回了他的暂缓执行申请，布莱克门、布伦南、马歇尔表示异议。布莱克门回忆起自己两年前发布的异议意见，他写道：“我当年根本不相信申请人威利·达登在佛州法院受到了公正审判，现在也不相信这一点。在任何一个国家的司法体制下，一个人都不应因受到不公正的审判而被处死。”3月14日，ABC电视台的《夜线》节目采访了达登，他对记者说：“如果他们把我送上电椅，我打算呐喊，大声呐喊，不停呐喊，说'无罪，无罪，无罪'”第二天，达登被正式执行死刑。 在随后几个开庭期内，布莱克门对死刑的不满与日俱增。1986年开庭期初，最髙法院审理了“麦克斯奇诉坎普案”(McCleskey v.Kemp)。在这起案件中，社会调查数据表明，佐治亚州的死刑判决受种族因素影响很大。类似沃伦·麦克斯奇这样杀害白人的被告，被判处死刑的几率是受害者为黑人的案件的4.3倍。1987年4月，最高法院以5票对4票驳回了麦克斯奇的申诉，鲍威尔主笔的多数意见指出，社会统计数据不能充分证明严重种族歧视的存在。布莱克门在异议意见中写道：“最高法院驳回麦克斯奇的平等保护诉求，严重违反了宪法要求我们'审慎调查'的授权。”他第一次遇到通过社会科学统计数据向死刑发起挑战的案子，还是在第八巡回上诉法院期间，不过，与当时相比，他如今的想法已有很大不同。1968年，他在审理阿肯色州一起案件时，有人试图用统计数据表明，该州关于强奸案的死刑判决，因种族因素而存在很大差异。比如，如果一名强奸白人的黑人被定罪，有50%的可能被判处死刑，如果受害人是黑人，强奸犯的死刑几率只有14%。然而，布莱克门却在这起名为“麦克斯韦诉毕晓普案”(Maxwell v.Bishop)的案件的多数意见中写道：“我们还未做好准备，用社会科学理论或统计数据证明不公正的存在，进而推翻对黑人强奸犯们的死刑判决。”如今，20年过去了，他终于承认这类数据是有价值的。 1993年，最髙法院在“赫雷拉诉柯林斯案”(Collins)中判称，在押死囚即便提供了新的无罪证据，也不得无条件对其发布“人身保护令状”1982年，莱昂内尔·赫雷拉因杀死两名警察在德州被判死刑，他声称自己已经死去的哥哥才是真凶，要求重审此案。但是，由于德州法律规定，被告人若想以发现新证据为由启动再审，必须在定罪之后60天内举证，赫雷拉只好向联邦法院求助。他提出，自己“确实清白无辜”所提申诉与一般关于庭审不公的抗辩有很大差异。伦奎斯特此时已接替伯格成为首席大法官，他在本案多数意见中写道，赫雷拉关于自己“清白无辜的抗辩如果确实具有说服力”即便是在判决之后很久才提出新证据，理论上也可以对他发布“人身保护令状”但是，赫雷拉提供的证据无法达到“极具证明力”之标准。 布莱克门在审判席上宣读了自己的异议意见。他在意见最后一段，加了些语气略有些刻薄的法律分析。“最高法院完全不愿限制各州的死刑权力，根本不管它们处决谁，或者以什么方式处决，我对此非常失望。我深表怀疑的是，如果没有这些限制，死刑还是一种符合宪法的措施吗？只有一件事是可以确定的：如果一名死囚明明能证明自己无辜，最终却要被处死，这样的行为与谋杀有什么区别？” 布莱克门在“赫雷拉案”的异议意见中，几乎要表明自己对死刑的反对态度。但是，他并没有像自己的老战友威廉·布伦南、瑟古德·马歇尔那样，真的跨出那一步。布伦南和马歇尔明确反对死刑，在任何死刑案件的投票中都保持同一立场，即“死刑在任何情况下，都是宪法第八修正案和第十四修正案所禁止的残忍与异常刑罚”。 “赫雷拉案”宣判后的那个夏天，布莱克门的助理安德鲁·夏皮罗向他提交了一份建议。夏皮罗写道：“本开庭期，您曾表达过对最高法院死刑立场的不满，甚至认为死刑机制本身已经失效。我想，是时候讨论死刑的合宪性问题了，我想以备忘录的形式，简要归纳您的观点。”之后，他用一份8页篇幅的备忘录，简要回顾了最高法院在“弗曼案”之后，为防止陪审团恣意擅断，在死刑案件裁判中付出的艰辛努力。夏皮罗写道，最高法院部分成员明显认为，陪审团任意裁判死刑的问题，应该可以得到解决，但布莱克门应该不会这么想。“近20年来的经历，对您关于这一问题的判断会有什么影响，我只能靠推测。但是，上一个开庭期中的一系列死刑裁判，已足以令我质疑死刑中存在的问题，能否被真正解决。”他认为，“20年来，我们一直试图用宪法第八修正案，来论证死刑的正当性，但这种努力已归于失败。事实证明，以微调的形式改革死刑制度是不可能成功的，因为一个程序若想足够精确，必须保证个人独立判断，不受恣意干扰。” 夏皮罗告诉布莱克门，“最高法院大法官中，只有您一个人关注联邦司法机构的运行机制及效果。您的联邦法官生涯已有30年之久。”的确，在“弗曼案”与“格雷格案”里，布莱克门拒绝宣布死刑违宪。“当司法运行机制的某些问题受到质疑时，您表达了对公平公正的渴望，和对死刑加速执行现状的深切忧虑。”夏皮罗最后总结道：“与您在这项议题上的立场相一致的是，最终已经证明，死刑这类刑罚在宪法上是行不通的。”最后，夏皮罗不再以顾问口吻说话，而是回复到助理身份，列出了近期“值得一读的文章”清单，并写道：“希望您觉得这些有用。” 布莱克门已做好了表态准备。他进入最高法院的第一年，曾秉持法兰克福特的司法克制理念，如今，他的立场已发生转变。他在“格雷格诉佐治亚州案”中，曾承诺保证死刑案件的公平公正，现在已被证明是徒劳无功。此外，他永远不会忘记自己在“波普诉美国案”中的经历（第八巡回上诉法院期间）当时，他本想畅所欲言，但面对其他法官的批评，却选择了妥协。现在，他已经快85岁了，是时候就死刑问题摊牌了。他告诉自己的法官助理，让他们加快研究进度，起草一份宣布死刑违宪的判决意见初稿。 安德鲁·夏皮罗的助理任期届满，1993年开庭期开始后，他未完成的工作，由四位新任法官助理接手。在布莱克门的办公室内部，这个项目被称为“死刑异议”（Death Penalty Dissent)。项目主要分为两大部分：一是事先拟好一份判决意见初稿，二是选择一起合适的案件，用他们的内部术语，是一个“载体”通过这个载体，发布前述判决意见，进而实现最佳宣示效果。布莱克门希望能在1993年底发布这个意见。但是，要想选择一个适当的案件，可比预期要困难得多。因为这个案子必须是一起普通的死刑上诉案，不涉及其他复杂议题，而被告人免予死刑的申请，很可能被最高法院驳回。这样一来，这份意见就可以以异议意见的形式发布。布莱克门属下团队一直在为这一刻做准备。 初稿由所有助理合作撰写，其中大部分篇幅由米歇尔·亚历山大完成。十月底，她将初稿提交布莱克门审阅。她写道：“这毕竟是一份以您个人名义发布的异议意见，所以，我尽我所能，用您的'声音'表达立场。比如，我会设身处地，在这份异议意见中，体现您在这20年里，因死刑问题而经受的挫折，累积的智慧。”布莱克门几乎全盘接受了初稿内容，只做了简单修订。比如，亚历山大的原文是：“从今往后，我决心不再对死刑机制做任何修补。”布莱克门把首句改为“从现在开始”但亚历山大建议他恢复原样。布莱克门思虑再三，把“决心”改为“将”这句话随即变为：“从今往后，我将不再对死刑机制做任何修补。”这句话后来成为布莱克门最著名的判词，与他的名字紧密相连。 布莱克门与助理们草拟的意见初稿，开头是一段通用模板：“今晨某一时段，XX将被XX州处决。致死毒液将注入他手臂上的静脉血管……”与此同时，助理们也密切关注着陆续被排入待审案件表的死刑案件，他们最终选定了德州人布鲁斯·卡林斯的案子。卡林斯在这起抢劫案中，杀害了一位酒吧老板。 1994年2月22日，最高法院在“卡林斯诉柯林斯案”(Call-im v,Collins)中，驳回了卡林斯的调卷复审令申请，布莱克门单独发布了一份22页纸的异议意见。这份异议意见的开头是这样的：卡林斯将于次日凌晨1点被德州政府执行死刑，“致死毒液将注人他手臂上的静脉血管。设计这种毒液的目的，就是为杀死人类。见证者站在几尺之遥的地方，此时此刻，卡林斯不再是一名被告，一个上诉人，或者一个申请者，他只是一个普通人，被绑在轮床上，几秒钟内就将撒手人寰。”意见继续写道，“最高法院曾宣布，死刑必须始终一致，以理性、公允的方式执行，否则就不能处决人犯，就像'弗曼诉佐治亚州案'那样。如今，20年过去了，尽管各州政府和法院修订了相关法规与诉讼程序，但死刑的适用，仍然充满了专断、歧视、随性和失误”布莱克门的观点，与马歇尔、布伦南有细微差异。他认为，死刑在理论层面是可以接受的，但是，在实践层面，目前的死刑适用情况，根本达不到宪法要求。“与其助长最高法院的错觉，令大家以为修订后的法律已经满足司法公正的标准，我倾向于从道德、理性上直接承认：近些年的死刑实验，已经完全失败了。” 这份意见公布后，年老力衰，还有四年就将退休的布伦南大法官致电布莱克门，告诉他：谢谢你的“礼物” 最高法院法官助理办公室也打来电话，问布莱克门是否要附上一段声明，因为他的异议意见从此将作为通用意见，附在本院每一起死刑判决的背后。他的助理建议，声明最好能选择与布伦南、马歇尔差不多的措辞：“我坚持认为，任何案件中的死刑裁判都违反了第八修正案。”但是，这项声明无法准确传达布莱克门的真实想法，他最终确定的声明内容是：“我坚持认为，死刑无法在宪法约束下公正执行。” 六个月后，布莱克门收到布鲁斯·卡林斯的代理律师布伦特·牛顿的来信。他告诉布莱克门，卡林斯的暂缓执行死刑申请已被州法院批准，他正为求生而努力申诉。律师附上了卡林斯的一封信，信是这名死囚用圆珠笔抄写在一张被撕下来的便签纸上的。 亲爱的先生：我必须写信告诉您，我有多么感激您在我的案件中所作的决断，这也充分说明，本周适用的死刑有多么不公正。我希望这封信能表达我的感激之情。有朝一日，正义会达到均衡尺度，并被人们广泛接受，而这一切，都归功于您的决定。 这位死囚告诉布莱克门，“我真心期望您会因自己的行为而保持内心安宁。” 布莱克门回信向律师致谢，但没有回复卡林斯的来信。1997年6月，卡林斯的妹妹艾德琳·罗宾森从达拉斯给布莱克门写来一封信，她说：我的哥哥已于5月21日被处决，临刑前，“他多次提到您的名字，并再三表达他个人对您的无上敬意”。

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