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Schopp in Nebraska Law Review (2002) 81. Copyright 2002, Nebraska Law Review. Used by permission.


Some Supreme Court opinions overturn capital sentences or reason that such sentences should be overturned due to inappropriate patterns of application, although the Justices writing these opinions apparently accept capital punishment ("CP") as constitutional in principle. In a widely-recognized opinion, Justice Blackmun announced that he would no longer accept CP as constitutional under the Eighth Amendment by stating, "I no longer shall tinker with the machinery of death." He previously accepted CP as constitutional, however, and apparently continued to see it as constitutional in principle. Three of five concurring Justices in Furman overturned the capital sentences at issue in that case due to arbitrary or discriminatory application, although they did not contend that CP violates the Constitution in principle. Two of these three Justices later upheld CP as constitutional when appropriately applied. A fourth Justice in Furman concluded that CP violates the Constitution in principle, but he also concluded that CP violates the Constitution in practice due to discriminatory application. Thus, the reasoning that supports this Justice's conclusion of unconstitutionality in practice is distinct from the reasoning that supports his conclusion of unconstitutionality in principle. This series of opinions reflects the general proposition that distortion in application can render CP unconstitutional in practice, independently of the conclusion that it is constitutional or unconstitutional in principle.

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