Justice Stevens: Death Penalty Unconstitutional

At 90 years old, retired Supreme Court Justice John Paul Stevens is showing no sign of fading quietly into the historical archives of the court. Rather Stevens has started speaking out about topics once thought off-limits for a retired justice, including the death penalty. Once a supporter of capital punishment, Stevens has reversed course, arguing it should be unconstitutional.

The statement comes in a frank essay to be published this eek in The New York Review of Books where Stevens concludes that personnel changes on the court, combined with “regrettable judicial activism” has created a system of capital punishment infected with racism, biased toward conviction and muddied by politics.

The essay is a review of the book “Peculiar Institution: American’s Death Penalty in an Age of Abolition,” by David Garland, professor of law and sociology at New York University. Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death. It would appear that Justice Stevens largely agrees with the professor.

Stevens’ review of the book largely becomes a critique of the court and the court’s role in dismantling the procedural safeguards that would make it possible to constitutionally carry out executions.

The critique is fascinating as much for its bluntness about the recent activism of the Rehnquist and Roberts Courts as it is an stark assessment of the American public. Stevens, known as being generally even-tempered and good-natured, is clearly no longer concerned with stepping on toes.

And to be frank, his honesty is refreshing in the face of a tradition of congeniality that often stifled constructive criticism of the court. And with 35 years on the bench under his belt, Justice Stevens surely has enough historical perspective to weigh in as he does, not to mention personal perspective. Born into a family of wealth in Al Capone’s Chicago, Stevens was a young boy when his father, a hotel owner, was arrested, convicted, and then later exonerated, on embezzlement charges. Stevens witnessed first-hand the conviction of an innocent man and the trauma that brings to an entire family, and he witnessed just how the courts can change lives in an instance.

Unfortunately for the American public Stevens’ words are not likely to change any hearts and minds, and since he’s no longer on the bench, Stevens can no longer impact law and policy. The best we can hope for is that he inspires lawmakers to take the kind of bold action called for in bringing to an end a system of punishment rife with racism and mistake that does nothing but mock our constitutional principles.

photo courtesy of Jeff Kubina via Flickr

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Martha E.

11:11AM PST on Jan 29, 2011

I'm a member of the Texas Coalition Against the Death Penalty.

There is rampant racism in our system. There is insufficient good representation of clients. Many police and prosecutors treat their cases like a report card on how they're doing, so they go for conviction, rather than truth. Innocents executed are the most obvious reason against it. Men who spend 30 yrs in prison and then are exonerated, have been robbed of their most productive years and a family and a life. The Innocence Project has been a bright shining light in this mess.

Why in the U.S. and not in other enlightened countries? Our culture of guns and our love of our old wild west sets our tone.

The Death Penalty. NOT IN MY NAME.

send a green star

Kathy M.

6:39PM PST on Dec 9, 2010

The problem with the death penalty is that too much time elapses between when the crime is committed and the execution. The criminal has multiple appeals in prison and many years to reconcile himself to his very humane passing--something he never bothered to give his victim. Although I do agree the death penalty should not be an option for someone convicted solely on circumstantial evidence, I absolutely support it for the Jeffrey Dahmers and Ted Bundys who are known to have committed the crimes of which they stand accused. I see no benefit in incarcerating people like this for life when we know they will never be paroled. Execute them without any appeals and be done with it. It gives the victim's family justice, as well.

Jacqueline B.

7:35AM PST on Dec 2, 2010

kudos for speaking out on this issue, no perhaps he could say the same about all the animals we execute in this country.

Kael W.

7:50PM PST on Nov 30, 2010

Different countries and ideologies have no same results.
We have death penalty to execute those who commit serious crime.It's said to assure a more stable society.
While it's a bit absolute,which leaves no chance for rebirth.

Shalvah L.

8:48AM PST on Nov 30, 2010

I hope retired Supreme Court Justice Mr. Stevens does have influence on lawmakers and I hope others join him. It's about time the U.S. woke up in the 21st century!!!

Gene W.

8:01AM PST on Nov 30, 2010

@Kelly B., no I am not “assuming because there are more black men behind bars who have been convicted of murder than there are white that more black men commit murder.” The fact is that there are not more black men on death row than white (it is almost equal in Texas), only that they are in a greater number than their percentage in the overall population of the U.S. The fact that more blacks commit murder (48% of murders committed by black) than their percentage of the population(less than 20%) is a fact easily found in the Bureau of Justice statistics.
As far as the argument of “top notch criminal attorney” I guess that Bernie Madoff, Martha Stewart and all of the others convicted of “insider trading” are without “top notch attorneys”. The truth is that for the most part prosecutors and defense attorneys are pretty much equal; I will agree that often the state has more money than the defense but that does not help the facts of the case.

James M.

5:44AM PST on Nov 30, 2010

When capital punishment was struck down decades ago, William O. Douglas said that being executed was comparable to being struck by lightning. William Brennan said that not only was capital punishment being carried out in an arbitrary, prejudicial and racist manner, but also that most Americans rejected it. The fact that there is an interest in celebrating the 150th anniversary of secession shows that bigotry and racism are alive and well in the country. In addition, the preferred method of execution, lethal injection, is possibly being turned into a mass murder method in China. "Nice" execution methods like the gas chamber are often suited for such purposes. Furthermore it continues Nazi practices by involving physicians. Then though marijuana would be permitted under the Single Convention on Narcotic Drugs, to which the US acceded and for which it passed implementing legislation if it could be shown to have medicinal benefits, the Federal government has waged a campaign against medicinal marijuana, but never challenged its use in executions in New Jersey and possibly other states. Scheduled drugs in the Single Convention may only be manufactured and used if they can be shown to have medicinal value, can be used to manufacture drugs with such value, or can be used in medical research. So bigotry and defiance of international law human rights conventions are alive and well in the US, and while I am glad Justice Stevens is attacking exections now, why not earlier?

Lionel M.

1:44AM PST on Nov 30, 2010

No justice system is infallible and therefore no sentence passed should be impossible of correction. The death sentence, once executed, cannot to be reversed and is accordingly entirely in denial of civilised standards. Only nations steeped in barbarism yet retain the death sentence.

Salome W.

12:41AM PST on Nov 30, 2010

We must thank him - though it would have been better timing if he had had this revelation some 60 years ago.

I have seem the lust for blood too often in American voices, seen it in the faces of jury members, heard it in the voices of judges.

It is frightening and I don't understand it. Justice must not be vengeance. Vengeance is an emotion that springs hot from a crime, and justice must be given with cool heads and hands.

And trading one murder with another - and this one 1st degree - for their can be nothing more premeditated than a death penalty. No, not for me.

David K.

12:07AM PST on Nov 30, 2010

Since experiencing two hangings of innocent persons wrongly convicted in London (UK) I have been strongly against the death penalty. I now regard judicial murder as uncivilised and have been contemptuous of the US for reintroducing the death penalty. Of course states using it have murdered innocent people especially Texas where juveniles, mentally deficient, and blacks, seem to be the most victims. This is no surprise, and hopefully Americans will soon realise how more civilised nations regard them as eneath contempt for this barbarism.