Many years ago, I happened to cross paths with then-US Supreme Court Justice Harry Blackmun. We were attending different conferences in Aspen. I was in the Music Tent, as part of John Denver’s regular annual environmental education meeting, while Justice Blackmun was speaking to a legal group that had gathered in the Aspen Institute next door. That beautiful August evening we passed on the sidewalk that divides the two. I recognized him and told him that his name was spoken with honor in my Air Force Academy classroom regularly. He could not have been more gracious, and a few days later a signed photo of the Justice arrived, and it still hangs a few feet from me in my home office.

I was reminded of Justice Blackmun when I read a story in Colorado Politics. In one of my favorite sections, the Out West Roundup, I learned of a criminal case in Utah, where that state’s Supreme Court – hardly a liberal group or state – had blocked the execution of a murderer. Let’s not quibble, the prisoner is a horrible person who murdered a mother of three. And in Utah, one might well expect the death penalty to be swiftly carried out. But that’s not really the way death penalty cases work, in that there is usually an entire appeals process, given that the state intends to kill a person as an official act of governance.

But here’s the problem. The inmate, whose name I shall not state, has spent 37 years on death row, and apparently suffers from severe dementia. It appears that he literally has no idea why he is in jail, nor why the state wants to kill him. I won’t call him elderly, as he matches my 67 years of age, but it appears that his mind is largely gone.

Now, if you see the justice system primarily as a way to hand out punishment as justice, is it really justice if the criminal has no idea what he or she is said to have done? It is cruel or unusual punishment to kill a person who is terrified and truly doesn’t understand that is happening? Or shall we execute regardless of the mental state of the prisoner, as a means of carrying out justice? Or is it something else?

I personally oppose the death penalty. I’m not thrilled with the state handing out, as punishment, an act that is the worst action any regular citizen can take. I’d like the government’s behavior to be above that of society’s worst members. But fundamentally, I oppose the death penalty because we know that sometimes the justice system gets it wrong. Innocent people have been sent to jail, and to death row. There have been roughly 200 people released from death rows around the nation since 1973 (when the Supreme Court allowed executions to resume). These 200 were exonerated often by use of new forensics capabilities, often DNA. It would seem profoundly naïve to think that these 200 people were falsely convicted, but not a single other innocent person has been executed. It is a near mathematical certainty that various states have killed –murdered essentially – innocent people. And that to me I by far too high a price to pay.

Life in prison with no chance of parole seems to me to be a more harsh penalty than death. And, if mistakes are discovered, an innocent person can be released from jail, rather than have his family offered apologies for killing the wrong person.

The Utah case offers an admittedly difficult situation into which justice is applied. The person who committed the horrible murder is essentially gone, his mind lost in the misfiring synapses of his brain, a brain that dementia has ravaged. Yet the victim is still dead, the family still shattered. Someone should pay, right? Yet executing a terrified older person who has absolutely no memory of having committed a crime also seems unfair. Hence Justice Blackmun’s statement, “I shall no longer tinker with the machinery of death.”

My solution, and Blackmun’s, is the aforementioned life in prison without parole. Facing a lifetime in a small cell is, frankly, more terrifying to me than the death penalty. And, as noted, that sentence can be undone, and a measure of justice returned to the case, 

I weep no tears for Ted Bundy or John Wayne Gacy. But I do worry about those falsely adjudicated guilty and hanged for things they never did. This is one of those “what is the least bad solution” to a situation that requires justice when no obvious justice is available. I believe Blackmun got it right. We should no longer tinker with the machinery of death. 

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.