"Retired Justice John Paul Stevens on His ‘Wrong’ Vote on Texas Death Penalty Case," is the title of George Stephanopoulos' post at ABC News.
Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.
“I really think that I’ve thought over a lot of cases I’ve written over the years. And I really wouldn’t want to do any one of them over…With one exception,” he told me.
“My vote in the Texas death case. And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.
At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said. But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.
The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.
He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”
ABC News has also posted the full transcript of the interview with Justice Stevens. Here's an excerpt dealing with capital punishment.
GEORGE STEPHANOPOULOS: You of course, became an outspoken opponent of the death penalty in your time on the court. How did you evolve? Can you summarize how your own views evolved?
JOHN PAUL STEVENS: About the death penalty? Well, of course, it’s a long story, because I’ve been involved in that issue for so long. But there also you have to keep in mind, there are always two part to the question. One is, “When do you think it’s constitutional to have the death penalty?” And the other question is whether one thinks it’s a wise thing to do. And on the second question, whether your opponent is a matter of policy I’ve never felt that it was a particularly wise method of punishment. And several of the members of the court, I can say specifically Warren Burger and Harry Blackmun, although they voted to uphold the penalty consistently early on, they personally did not think it made sense.
But my own thinking on the issue, on the constitutional issue evolved over the years, after our first decision in 1975, in the first year that I came in the court, in which at which time I thought the court was adopting procedures and rules that would confine the imposition of the death penalty into a very narrow set of cases. And they took special pains to have fair procedures.
And over the years, the– I was disappointed to find they expanded the category of cases, rather dramatically later on, in ways that I don’t think Potter Stewart would have agreed with– who was sort of the principle author of our join opinion on– and they also have relaxed procedures in ways that actually give the prosecutor advantages in capital cases that I don’t think he has in ordinary criminal cases. And so that seemed to me there’s a change in the general atmosphere around capital cases that occurred over the years and made me–
GEORGE STEPHANOPOULOS: It seems like there may be another evolution now in the country that the case of Troy Davis, executed last week. It appeared with the protests around that that the country may be heading towards a tipping point in another direction, against the death penalty. Is that what you see?
JOHN PAUL STEVENS: I don’t know. I’m not a very good judge of public reaction on something like that. But I think there always has been a significant group that felt that the penalty really wasn’t worth it and caused more harm than good.
And:
GEORGE STEPHANOPOULOS: Which case are you most proud of in your career?
JOHN PAUL STEVENS: You know, I’ve been asked that question a lot and I should be ready for– with an answer. I’m– there– there are a lot of them, to tell you the truth. And I really think that I’ve thought over a lot of cases I’ve written over the years. And I really wouldn’t want to do any one of them over.
GEORGE STEPHANOPOULOS: Not one?
JOHN PAUL STEVENS: With one exception.
GEORGE STEPHANOPOULOS: Which is?
JOHN PAUL STEVENS: My vote in the Texas death case. And I think I do mention that in that case. I think that I came out wrong on that.
GEORGE STEPHANOPOULOS: And one of the things we’ve seen in Texas is a proliferation–
JOHN PAUL STEVENS: Right.
(OVERTALK)
GEORGE STEPHANOPOULOS: –of executions.
JOHN PAUL STEVENS: And I think that my law clerk at the time sort of foresaw that that was a problem that was inherent in the way that statute was drafted.
GEORGE STEPHANOPOULOS: I don’t know if you saw it, but there was actually a moment in the last couple of weeks, in one of the presidential debates, where the number of executions in Texas was cited, and the crowd cheered.
JOHN PAUL STEVENS: I noticed that, yeah.
GEORGE STEPHANOPOULOS: What did you think?
JOHN PAUL STEVENS: I was– I was rather disappointed, because it– maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good. I don’t happen to share that view. But there are obvious people who do. And, of course, being hard on crime has been– always– is politically popular, let’s put it that way.
More on on Jurek v. Texas, 428 U.S. 262 (1976):, via Oyez.
Justice Stevens' book, Five Chiefs: A Supreme Court Memoir, is now available. It's published by Little, Brown and Company.
Washington, D.C.'s great independent book seller Politics & Prose will host an author event with Justice Stevens on Nov 7, 2011. I'll post news of additional author events.
Late last year, Justice Stevens wrote, "On the Death Sentence," for the New York Review of Books. The essay is noted here.and commentary on his essay begins at the link.
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