Back in February 1994, the Supreme Court declined to review a Texas death penalty case, Callins v. Collins, and effectively condemned Bruce Edward Callins to execution by lethal injection. In dissent, then-Justice Harry Blackmun condemned the decision on the general grounds that the death penalty itself is unconstitutional.
Justice Antonin Scalia would have none of it. But instead of refuting Blackmun, and vouchsafing the death penalty, by referring him to the allegations in Callins, he picked an even more brutal murder case—McCollum v. North Carolina—to make his point.
“[Death by lethal injection] 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,” Scalia wrote. “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!”
Thanks to DNA evidence, mentally disabled half-brothers Henry Lee McCollum and Leon Brown, now 50 and 46 respectively, were just exonerated of that crime after 30 years in prison, which McCollum spent on death row.
I don’t imagine this news will change Scalia’s views about the constitutionality of the death penalty. But that’s separate from the question of his views about whether it's morally just and an effective deterrent. If, 20 years ago, McCollum underscored in Scalia’s mind not just the legality but the importance of capital punishment, then the fact that it was wrongly decided and has been overturned reveals a huge blind spot in his reasoning. Fortunately, Scalia is one of the most outspoken, public facing members of the Supreme Court. He should have no problem preparing a statement. And he owes us one.