A recent article by retired Justice John Paul Stevens presents a clear view of how the Supreme Court has eroded protections against death-penalty errors and abuses.
Growing doubts, as well as the DNA testing of the fallibility of death verdicts, had led Justice Stevens to reverse his own position from support for the death penalty. He concluded in a 2008 case, while upholding Kentucky’s lethal injection method, that “state-sanctioned killing” was becoming “more and more anachronistic” and that capital punishment is unconstitutional under the Eighth Amendment.
In The New York Review of Books, Justice Stevens wrote that changes in the membership of the court, together with “regrettable judicial activism,” had transformed a reasoned justification for capital punishment into a practice that is guided by emotion and politics and is racially biased. He recalled quoting two years ago from an opinion written by Justice Byron White that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”
The essay is in the form of a review of a book, “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. Justice Stevens agreed generally with the book. He wrote that it made “a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.”
The justice wrote that the court was “just trying to interpret the constitution” when it invalidated all state capital punishment statutes in 1972. But he praised Justice Potter Stewart’s opinion aimed at narrowing the category of death-eligible offenses. “More recent decisions have unwisely rejected that narrowing approach,” Justice Stevens wrote, by permitting inflammatory victim-impact statements and race-based prosecutorial decisions.
A 1987 decision barred victim-impact statements as “inconsistent with reasoned jury decision-making,” but it was overruled in 1991. Justice Stevens wrote that two judges in the 1991 majority committed “regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decision.” The New York Times identified the two as Justices Anthony M. Kennedy and David H. Souter.
He criticized the 5-4 decision in 1987 in McCleskey v. Kemp, which held that it did not violate the Constitution to disallow statistics showing that in Georgia murderers of white victims were 11 times more likely to be sentenced to death than were murderers of black victims. He called that decision “a haunting reminder of once-prevalent Southern lynchings.”
Several other retired justices have made speeches and given interviews, but Justice Stevens has been the most outspoken. Those who object to decisions by the current Supreme Court, with its usual 5-4 conservative majority, can welcome remarks like those of Justice Stevens.