"Ex-Justice Criticizes Death Penalty," is the title of Adam Liptak's front page report in today's New York Times.
In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium. With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”
In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.
But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.
In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.
The essay is remarkable in itself. But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.
In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.
He will be on “60 Minutes” on Sunday night.
The essay is actually a review of the 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. The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions.
Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.
In discussing the book, Justice Stevens defended the promise of the Supreme Court’s 1976 decisions reinstating the death penalty even as he detailed the ways in which he said that promise had been betrayed.
With the right procedural safeguards, Justice Stevens wrote, it would be possible to isolate the extremely serious crimes for which death is warranted. But he said the Supreme Court had instead systematically dismantled those safeguards.
Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.
That's a wonderful introduction to this must-read. "On the Death Sentence," is Justice Stevens' essay in the current issue of the New York Review of Books. Here's the beginning:
David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences.
Describing his study, Garland explains:When I talk to people about my book on capital punishment, the first thing they inevitably ask is, “Is your book for it or against it?” The answer, I tell them, is neither.
In fact, despite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.
His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York. Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.
As is typical of many Supreme Court opinions rejecting legal arguments advanced by defendants in capital cases, Garland’s prologue begins with a detailed description of a horrible crime that will persuade many readers that the defendant not only deserves the death penalty but also should be subjected to the kind of torture that was common in sixteenth-century England. Garland also describes such torture in detail. This “emotional appeal” of the death penalty, Garland declares, is an important topic in his study.
Earlier coverage of Peculiar Institution: America’s Death Penalty in an Age of Abolition by David Garland, is in this post.