Justice Stevens on the Death Penalty: A Promise of Fairness Unfulfilled

[WSJ_law_blog]

A lot’s been written about the High Court’s recent decision in Baze v. Rees to uphold the constitutionality of Kentucky’s lethal-injection cocktail. While there was a 7-2 majority, the seven justices in the majority filed six separate opinions, failing to reach a consensus on the legal reasoning.

Among the many concurrences was an opinion by John Paul Stevens, the 33-year Supreme Court veteran. Stevens, 87, wrote that while he felt bound by precedent to uphold the constitutionality of Kentucky’s death penalty procedures, he wished to abolish the death penalty once and for all, a position that Justice Harry Blackmun famously took at the end of his career. “State-sanctioned killing,” Justice Stevens said, was “becoming more and more anachronistic” and that the court decisions and actions taken by states to justify the death penalty were “the product of habit and inattention rather than an acceptable deliberative process” to weigh the costs and risks of the penalty against its benefits.

In today’s NYT, Linda Greenhouse takes a look at the opinions leading up to Stevens’s views.

During his tenure, writes Greenhouse, Stevens has changed his views on many issues, including affirmative action (he was originally an opponent), but it’s on the death penalty that his evolution is most apparent. In July 1976, little more than six months after taking his seat, Justice Stevens announced the opinion for the court in Jurek v. Texas, one of the three cases by which the justices gave their approval to a new generation of death-penalty statutes. The defendant, Jerry Lane Jurek, had been convicted of kidnapping a 10-year-old girl from a public swimming pool and then raping and killing her.

The opinion concluded that Jurek’s death sentence was constitutional because “Texas has provided a means to promote the evenhanded, rational and consistent imposition of death sentences under law.”

Last year, in his dissent in Uttecht v. Brown, in which a 5-to-4 majority gave state courts leeway in death penalty trials to remove jurors who express even mild doubt about capital punishment, Stevens wrote that, “Millions of Americans oppose the death penalty” and yet can still serve as conscientious jurors, and that the majority had “gotten it horribly backwards” in enabling prosecutors to weed them out.

In his opinion on Wednesday, Stevens, referring to the Jurek decision, said those who voted to uphold the death penalty in 1976, “relied heavily on our belief that adequate procedures were in place” to treat death penalty cases with special care so as to minimize bias and error. “Ironically, however,” he continued, “more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.”

LB’ers: What say you on Justice Stevens’s thirty-year-long about-face?