December 2, 2010
"It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion."
John Paul Stevens, who retired from the Supreme Court last term at age 90, wrote those words in 1977, in the majority opinion on the case Gardner v. Florida. In his freshman term the year before, he had voted with the majority in allowing a 1972 Court-imposed national moratorium on executions to lapse, expressing his belief — and hope — that closely restricted parameters and rigorously enforced procedures would guarantee "evenhanded, rational and consistent imposition of death sentences under law." By the end of his 34-year tenure, however, he had concluded that caprice and emotion in regard to capital punishment are so endemic within the judicial system and popular attitudes that rationality and consistency are in almost every case impossible.
Stevens' evolution — I'm not sure that is the right word for it — can be gleaned from his review of the book Peculiar Institution: America's Death Penalty in an Age of Abolition, a comparison of American and European approaches to capital punishment by the British legal scholar David Garland, appearing in the upcoming issue of The New York Review of Books and available on-line at www.nybooks.com. Garland's thesis as outlined by Stevens is that in most of Europe, strong governments abolished the death penalty after World War II despite popular support for it, eventually swaying a majority of citizens to embrace abolition as a mark of civilized society; in the United States, by contrast, the "tradition of community-level executions dating to colonial times [and] frontier beliefs in meeting violence with violence" shaped state and local policy to favor capital punishment, while "the more politicized bureaucracy and the relatively weak national parties" were "inadequate to the task of overriding public support."
Thus, in its 1972 moratorium decision, Furman v. Georgia,the Supreme Court deferred to the states, leaving them to revise their statutes to conform to the Constitution's prohibition of cruel and unusual punishment, to "narrow the category of death- eligible offenses while enforcing procedural safeguards against the risk that facts unrelated to moral culpability would affect sentencing."
While the Court did succeed in reining in the most egregious aberrations — "eliminating categories of defendants (juveniles and mentally retarded) and offenses (rape and unintentional killings) from exposure to capital punishment nationwide" — the strictures Stevens endorsed from the beginning were subsequently undermined by "the regrettable judicial activism" of more recent appointees, whom he respectfully leaves unnamed. Particularly, he cites three significant reversals of prior Supreme Court decisions which (1) had banned victim-impact statements as inflammatory and peripheral to the facts of the case; (2) had forbidden the exclusion of prospective jurors on the basis of their opposition to the death penalty; and (3) had eliminated seeking the death penalty for accomplices to a murder. In addition, he cites the failure of the Court in 1987 to mandate reform of the Georgia judicial system, in which murderers of Whites were sentenced to death eleven times more frequently than murderers of Blacks.
It is not that Stevens' initial position had changed over the years. The imposition of death remained for him a legitimate prerogative of the state under the Constitution. But, as he argued in Gardner, "the action of the sovereign in taking the life of one of its citizens ... differs dramatically from any other legitimate state action" and thus must be held to the highest and most dispassionate of standards — standards which, given the pressures from a society which in Garland's words has a "fascination with death" and revenge are in almost every instance impossible to achieve.
Concurring for the most part with Garland, Stevens contends that arguments for capital punishment based on deterrence are specious, lacking any statistical proof; that the prolonged and expensive process of trial and appeal in capital cases imposes a "monumental" burden on the judicial system; that the very possibility of executing the wrong person makes the finality of the death penalty abhorrent; that the argument for "retributive justice" — revenge — is inherently emotive, thwarting rational criteria; and that the practice in many states of electing prosecutors and judges makes them more likely to seek or impose the death penalty "for political or cultural purposes."
Unlike religious positions against capital punishment — "only God can take a life" — which de facto alienate both nonbelievers and eye-for-an-eye radicals on the opposite religious side — Stevens' argument, formed over decades of experience, is purely practical: The death penalty is, as he wrote in a 2008 opinion, "the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes."
An argument for reason.