Evolving Justice

Justice John Paul Stevens

After the Supreme Court struck down existing death penalty laws as unconstitutional in Furman v. Georgia, 37 states enacted new death penalty regimes which sought to address Furman's concerns over the arbitrary application of the death penalty.  In 1976, four years after Furman, the Court upheld several of these statutes.  Justices Harry Blackmun and John Paul Stevens voted with the majority.  In 1994, a few months before he retired from the bench, Blackmun famously, if belatedly, changed his mind.  Stating that "the death penalty experiment has failed," Blackmun declared he would no longer "tinker with the machinery of death." 

Justice Stevens also reconsidered his views on capital punishment late in his tenure, after years of tinkering.  In a 2008 concurring opinion, Stevens, like Blackmun before him, denounced the death penalty as unconstitutional.  He 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."  After Stevens retired, at the end of the last term, he has become more outspoken about the fatal flaws of the death penalty.  He stated in an interview with NPR in October that the one vote he regretted in his long career was the 1976 vote to uphold the death penalty.  In an article just published in The New York Review of Books, On the Death Sentence, in which he reviews the book Peculiar Justice by David Garland, Stevens discusses his growing opposition to the death penalty in more detail and great candor

When Justice Stevens voted to uphold the constitutionality of the death penalty in 1976, he believed there would be sufficient safeguards in the law to ensure that it would be limited to a narrow category of defendants and that facts unrelated to moral culpability would be excluded from the sentencing decision.  What Stevens did not account for was what he refers to as "personnel changes" which have resulted in "regrettable judicial activism and a disappointing departure from the ideal that the Court, notwithstanding changes in membership, upholds prior decisions."

The Court, according to Stevens, overturned established precedent in several cases, leading to far "broader application of the death penalty," which he states would not have occurred but for the change in the Court's composition.  Stevens cites the abrupt reversal of established case law which had prohibited the admission of highly emotional testimony on the impact of the crime on the victim's family which "could serve no purpose other than inflaming the jury."  Legal principles did not evolve to warrant this change; what happened was that Justices Powell and Brennan were replaced by Justices Kennedy and Souter. 

Stevens provides other examples, including: (1) a case allowing death eligibility for defendants who participated in a felony that caused death even if they did not intend to kill; and (2) cases making it easier to exclude prospective jurors from capital cases if they express opposition to the death penalty even if they are willing to set aside their personal beliefs.  Finally, Stevens criticizes the notorious 1987 decision of McCleskey v. Kemp, which upheld a death sentence in a Georgia case despite a comprehensive statistical study which established that in Georgia murderers of white victims were eleven times more likely to be given the death penalty than murderers of blacks. (Justice Powell, who wrote the McCleskey, later told his biographer this was the one case he regretted).

Justice Stevens often claimed that he didn't move to the left, it was the Court that moved to the right.  But it really can't be disputed that Stevens evolved over the course of his career and ultimately became, as the New York Times described him, "an eloquent voice for civil liberties, equal rights and fairness."  Stevens, Blackmun, and recently-retired Justice David Souter as well, reconsidered their views on the death penalty and other issues based on their experience on the bench and upon seeing the impact their decisions had on people and on society at large. 

What a stark contrast to the conservative bloc on the Court:  Scalia, Thomas, Alito and Roberts.  As the Citizens United case recently proved, these four (when abetted by Justice Kennedy) are willing to reverse long-standing precedent for partisan reasons because they can.  Unlike great justices, such as John Paul Stevens, it is impossible to imagine these ideologues ever wavering from their deeply entrenched views on criminal justice, civil rights, the role of the federal government, and free enterprise, or ever expressing regret about a legal opinion -- unless it had the unintended consequence of undermining a preciously held conservative tenet.  Instead, it is we who are left with deep regret that they were nominated and then confirmed to serve lifetime appointments.  [Related posts: Waxing Nostalgia, Waning Outrage, Activist Judges, Corporate Takeover]