Justice Stevens on Capital Punishment

| by The Volokh Conspiracy

(Jonathan H. Adler)

Adam Liptak has an interesting article in today’s NYT previewing an essay by retired Justice John Paul Stevens in which he explains why he no longer believes the death penalty, as practiced, is constitutional.

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. . . .

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.

The essay is a review of David Garland’s
Peculiar Institution: America’s Death Penalty in an Age of Abolition and should be available later this week.