By means of a poignant essay
on capital punishment in America, former Supreme Court Justice John Paul Stevens has just now added his "outside voice" to the evolving debate over the wisdom and utility of the death penalty. No longer constrained by ethics or etiquette to avoid speaking his mind, no longer beholden to precedent or the particularized facts of the record below, he wants the world to know a little more about why he now believes capital punishment is arbitrary, capricious, and, as he first said
in 2008, unconstitutional.
In an essay, "On The Death Sentence," Justice Stevens offered readers of the current edition of the "New York Review of Books" his assessment of a "Peculiar Institution: America's Death Penalty in an Age of Abolition," by the legal scholar David Garland. As its title suggests, the book
is about the history of capital punishment, focusing upon the middle range of the 19th Century. As the former justice tells us, however, the book is also about comparative notions of capital sentencing in the United States and in Europe. Garland's work "makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified," Stevens writes.
What follows then is surely the most significant book review from a Supreme Court justice, sitting or otherwise, since Justice William O. Douglas raved
in 1962 about Rachel Carson's environmental classic, "Silent Spring." Actually, Stevens' essay is less a review and more a foil -- both for Garland's book and our special reviewer's desire to unburden himself about the topic after 35 years on the Court. "Professor Garland identifies arguably relevant purposes without expressly drawing the conclusion that I think they dictate," Stevens writes at the end. "Perhaps he will tell us his real position in his next installment, which I look forward to reading when (and if) it arrives."
We know Stevens' position now on capital punishment. In 2002, after 27 years on the Court, he voted
the death penalty for mentally retarded killers -- and wrote the opinion, Atkins v. Virginia
, in that case. In 2005
, he voted to preclude
the death penalty for men and women who had killed as juveniles. In 2007, in Uttecht v. Brown, he strongly dissented
from a Court ruling that made it easier for prosecutors to remove from capital jury pools men and women who had expressed misgivings about capital punishment. And in 2008, in the lethal injection case of Baze v. Rees
, Justice Stevens made it official. Quoting the late Justice Byron White, who had voted to do away with capital punishment in 1972, Stevens wrote:
"I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment."
It took Stevens 32 years to publicly acknowledge his mistake. In 1976, in Gregg v. Georgia
, the newbie Justice Stevens voted with most of his colleagues to reinstate capital punishment in America. But there were conditions the Court then placed upon prosecutors and lower court judges in exchange for giving them back the sentencing sanction. The Court ordered capital trials to be bifurcated -- there would be a guilt-innocence phase and then, if there were a conviction, there would be a sentencing phase. There would be the introduction of "aggravating" and "mitigating" evidence during the sentencing phase of a capital case. Jurors would be specially instructed about their new roles as sentencing figures. "No longer," wrote the Court in 1976, "can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines."
No one knows better than Justice Stevens what has happened to capital punishment in America
in the intervening 32 years. He had a front-row seat to the drama. He saw the inequities that came before him in capital cases. He saw the overreaching by prosecutors and the lack of principle on the part of trial judges. He saw the rise of victim-advocacy groups. He is an eyewitness to all that and now comes his testimony. In his review, Justice Stevens gently reminds the author (and the rest of us) that the recent Court has "unwisely rejected" the original death penalty "standard" set in Gregg and set itself on a course without reasoned bearing.
The deal back then, Justice Stevens writes today, was a "constitutional remedy" that "would narrow the category of death-eligible offenses while enforcing procedural safeguards against the risk that facts unrelated to moral culpability would affect sentencing." The number of death-eligible offenses hasn't risen much
. But the procedural safeguards designed to protect against arbitrary and capricious capital sentences have slipped away, Justice Stevens argues, due to "regrettable judicial activism" on the part of the Court's conservatives. It is quite the review. And also quite the ode to the power of change on the Court -- or at least the power of some of the justices to be changed in their views after decades on the Court. And on this last point, Justice Stevens can look to the recent past for compelling precedent.
In contrast to Stevens, it took the late Justice Harry Blackmun
only 18 years to change his mind about the death penalty. A Nixon appointee, a Republican, Justice Blackmun also signed onto
the Gregg decision in 1976 which allowed states, and the federal government, to try again for a constitutional death penalty scheme. But by 1994, nearing the end of his long career in public service, Justice Blackmun, like Justice Stevens, had had it with capital punishment. That year, he famously wrote in dissent in Callins v. Collins
"From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored -- indeed, I have struggled -- along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question -- does the system accurately and consistently determine which defendants "deserve" to die? -- cannot be answered in the affirmative."
It surely says something profound that two of the men responsible for the current iteration of the death penalty in America -- Stevens and Blackmun, both Republican appointees -- would so vocally change their minds about what they had done. And in the Garland review, Justice Stevens made sure everyone knows that he believes that Justice Potter Stewart, another Republican appointee who endorsed capital punishment in 1976, would have been mortified at the way it has been implemented over the past 25 years. The essay thus raises a question the current members of the Supreme Court will likely have to answer again in the age of DNA testing; is a government ever capable of imposing capital punishment in a way that is neither arbitrary nor capricious?
Stewart and Blackmun are long dead. But Stevens was on
"60 Minutes" Sunday night. From him, fortunately, there is more to come. Perhaps he can start where his essay leaves off -- and whether he feels there may be other justices, including sitting justices, who have come with age and experience to a turning point in their own beliefs about the death penalty in America.