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John Paul Stevens: Book Reviewer, Death Penalty Opponent

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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 to bar 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.

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It appears the sentiment is growing farther from the far conservative right with regard to the death penalty. As well it should. The cost alone in financial terms is enormous to bring a murder trial to the final conclusion. In my opinion the entire system is far to easily corrupted to take a position on the final punishment of death. It really serves no useful end. This form of punishment is not effective and is dehumanizing to all involved for the sake of revenge. It is not worth one innocent life that may possibly slip through the system and be wrongfully executed. This probably already has happened and for that reason alone it should be outlawed. John Grisham has written two novels and one true story with capital punishment as the central theme. These books are a good read and they can not help but to shape the opinion of a thinking man. I suggest that you read The Confession and the Innocent Man the first is a novel the second is a true story. Ask yourself is this the best way of dealing with this issue ? The Chamber is a third novel that deals with the horror of a violent means of dealing with the final punishment. I have believed in the past that it is acceptable to have capital punishment but when one does think about it the question of is revenge a good enough reason to have such a system ? many countries already have banned it. It would seem to me that there is an opportunity to do some comparative analysis and determine if our position is indeed better or worse than countries that do not offer it.

November 30 2010 at 10:56 AM Report abuse rate up rate down Reply

A Reply -- Justice John Paul Stevens' Hysteria: The Death Penalty Dudley Sharp Justice Stevens strong bias against the death penalty and his lack of voiced concern for murder victims is well known (1). Very few of the 112 Supreme Court Justices concluded that the death penalty is unconstitutional, as Justice Stevens has. A solid case for racial bias, systemically, with the US death penalty, post Furman, is difficult to make (2), contrary to Justice Stevens' position. Justice Stevens continues the ignorance of not studying the underlying data within the McCleskey v Kemp case. He should, if he cares about the facts and the truth (3). Of course death penalty cases are prone to conviction. Prosecutors must be more sure of these cases than for any others, prior to pursuing a trial. And that should be what we all want. Justice Stevens, it is the responsible thing to do, for all cases, which must be proven beyond a reasonable doubt. Justice Stevens makes an odd complaint, that it taints the jury when prosecutors exclude jurors opposed to the death penalty. Judge, the only way to have a qualified jury, in all cases, is if all jurors can award all sentencing options which are available under law in any case. Justice Stevens, as all of us, are concerned about the risk of executing an innocent. The Justice reverses the reality. Possibly, 25 of the 8100 death sentences given since 1973 may be actual innocents, or 0.3% of those so convicted. They have all been released (4). Innocents are more at risk without the death penalty. (5) Unintended error cannot, per se, render anything unjust. Any innocent convicted, sentenced and/or executed is unjust, but cannot render the death penalty unjust. In the history of the US, it is very difficult to reach a consensus as to even one confirmed case of an innocent executed. (6) Has it happened? Reason concludes yes. However, the evidence that murderers harm and murder, again, is overwhelming and universally conceded. In addition, The death penalty offers more protection for innocents than lesser sanctions. (5) The death penalty is an enhanced protector of innocents and more innocents will die without the death penalty. All human endeavors will entail error. The best that humans can do is work to minimize such error. In the context of all human endeavors, either private or governmental, that do put innocents at risk, is there one which has a better track record than the US death penalty, when considering actual innocent deaths? Likely not. In the context of criminal justice, the evidence suggests that we have lost nearly 100, 000 innocents to murder, since 1973, by parolees, probationers and early releasees, who murdered after such release while under government supervision (7). The proof of an innocent executed since 1973? There is none. (1) The "Moderate Republican" Death Penalty Values of Justice Stevens: Do tormented victims matter? Lester Jackson Ph.D., (2) Death Penalty Sentencing: No Systemic Bias" (3) a) "The Math Behind Race, Crime and Sentencing Statistics" John Allen Paulos, Los Angeles Times, 7/12/98 b) "The Odds of Execution" within "How numbers are tricking you" Arnold Barnett, MIT Technology Review October, 1994 c) A complete review of Joseph Katz' deconstruction of the Baldus database is required. (4) The 130 (now 138) death row 'innocents' scam" (5) a) "The Death Penalty: More Protection for Innocents" b) "Opponents of the Death Penalty Have Blood on their Hands", Dennis Prager, November 29, 2005 (6) "The Innocent Executed: Deception & Death Penalty Opponents" (7) "Prisons are a Bargain, by any measure", by John J. DiIulio, Jr., New York Times, January 16, 1996

November 30 2010 at 10:44 AM Report abuse rate up rate down Reply
dc walker

While I agree with the Justice that in some cases, like mental retardation, etc. the death penalty should not be voted on, but, when I read the horrendous story of the Connecticut family and how they were brutalized, raped and murdered even AFTER their attackers were given $15,000 from the wife's bank account, I have no sympathy. These were not men who deserved the sympathies of a jury. They were not satisfied with money but caused death to innocents. Perhaps the Justice should have sat in on that trial.

November 30 2010 at 10:09 AM Report abuse +1 rate up rate down Reply

If the guys who wrote the constitution didn't think that the death sentence was unconstitional, and the fact that the country had the death penalty when those guys were actually running it indicates that they didn't, how can it be unconstitutional now?

November 30 2010 at 8:56 AM Report abuse +1 rate up rate down Reply
lo colon

Legalities, aside, of which there are many that mililate against the death penalty, the single most definitive strike against this horrible act is the likelihood that an innocent person will be executed. In Texas, tragically, wrongful prosecutions and convictions abound. Yet, those currently in power with their heads buried in the sand continue to deny that innocent people have been illegally prosecuted and condemned even when overwhelming evidence of police incompetence and prosecutorial misconduct is subsequently revealed during the appeal process. If, per chance, a defendant gets lucky with a reversal or retrial, these same adherents of this medieval sentence are quick to rebut "the process works". Yes, unless you are unlucky enough where innocence is established posthomously. Then, the rebuttal is well, the system is not perfect. I would truly like to see a show of hands from anyone that would justify keeping this barbaric practice knowing that an innocent will end up being executed. Sadly, there are many of those here in Texas, one of the most prolific death penalty states in the world.

November 30 2010 at 8:06 AM Report abuse rate up rate down Reply

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