Wednesday, December 1, 2010

On the Death Penalty, Justice Stevens Regrets

      David Garland could hardly have wished for better luck than to have his new book on capital punishment favorably written up in the New York Review of Books by no less than a retired Supreme Court justice, John Paul Stevens. And for Stevens, the unsolicited assignment from the magazine’s editors gave him the chance to elaborate on his reasoning in concluding two years ago that the death penalty as it operates in the United States today serves no good purpose and should be abolished.
      Garland, a professor of law and sociology at New York University, is a little-known academic with a long list of titles on criminal law and sentencing. In Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010), the transplanted Scotsman seeks in part to explain the persistence of capital punishment in the United States at a time when the practice has been abolished in form or in practice in the rest of the West.
      From Stevens’ account — I have yet to read the book myself — Garland scrupulously avoids offering his own personal conclusion about the wisdom or morality of the death penalty. But Stevens says that Garland’s account fortifies the justice’s own view that the death penalty is “unwise and unjustified.”
      Garland’s book may profitably be read in tandem with an earlier work, The Death Penalty: An American History (Harvard University Press, 2002), by Stuart Banner, who is now a professor at UCLA Law School. Both depict capital punishment in the United States as infected with racism, historically and today, and beset these days with delays that all but negate the death penalty’s major stated purposes: deterrence and retribution.
      Apparently more than Garland, however, Banner shows that along with the persistence of capital punishment, the United States has a long tradition of opposition to the death penalty. Even before independence, some Northern colonies had narrowed the list of capital offenses from those in England. Abolitionist sentiment also dates from colonial times and grew after independence.
      Within the first years of the Republic, five states had abolished the death penalty for all crimes except murder. By the time of the Civil War, no Northern state provided capital punishment for any crime other than murder or treason. And Michigan in 1846 became the first state to abolish the death penalty altogether. Banner treats the decision as the start of a slowly emerging trend. Stevens faults Garland for treating it instead as idiosyncratic, the work of a few liberal reformers in the face of Michiganders’ general views.
      The death penalty continued to recede for a full century after the Civil War. New methods of execution were designed to be more humane: first, the electric chair; then, the gas chamber (and, now, lethal injection). Public executions disappeared. The number of executions fell over time. By the 1960s, abolitionists could see their goal within sight.
      The Supreme Court’s 1972 decision in Furman v. Georgia to invalidate all existing death sentences appeared to fulfill the abolitionists’ goal. As Garland relates, however, the backlash was strong and swift. By 1976, in Stevens’ first full year on the Supreme Court, two-thirds of the states had voted to reinstitute capital punishment.
      Stevens provided the critical fifth vote to uphold state death penalty laws as long as death sentences were not mandatory and jurors (or judges) had full discretion to consider all aggravating and mitigating factors in imposing sentence. Stevens’ hopeful expectation of a rational and equitable system of capital punishment was dashed by the Supreme Court itself. After the retirement of his fellow moderate Republican Potter Stewart in 1981, the court began to retreat from careful policing of capital cases.
      As examples, Stevens points to the court’s refusal in 1987 to act on the implications of a study showing death sentences imposed more often in cases with white victims than in those with victims of color. He faults the court for helping prosecutors block potential jurors with reservations about capital punishment. And he criticizes the court for reversing itself twice, in the span of only a few years, to allow the death penalty in felony-murder cases and to permit “victim impact” statements in capital sentencing hearings.
      In 2008, Stevens went public with his frustrations in a separate opinion in the decision, Baze v. Rees, that upheld the current procedure for lethal injection executions. With no convincing evidence of deterrence, and no legitimate interest in retribution for its own sake, Stevens concluded that it was time for “a dispassionate, impartial comparison” of the “enormous” costs of the death penalty compared to its dubious benefits.
      Garland casts doubt on the likelihood of such a debate. He views public support for the death penalty as a political and cultural phenomenon more than a considered legal policy choice — in effect, one battle in a broader culture war. Risk-averse politicians burnish their law-enforcement credentials by siding with public opinion.
      The Supreme Court has nibbled at the edges over the past decade by prohibiting the death penalty for juveniles or offenders with intellectual disabilities and in non-homicide cases. The rulings, two of them written by the moderate conservative Anthony M. Kennedy, hark to the previous tradition of narrowing capital punishment. But barring a further shift by Kennedy, the Roberts Court’s majority appears steadfast in giving states broad discretion to adopt what Garland provocatively calls this “peculiar institution.”


  1. Justice John Paul Stevens' Hysteria: The Death Penalty
    Dudley Sharp

    Justice Stevens strong bias against the death penalty and his lack of voiced concern for murder victims is well known (1).

    Very few of the 112 Supreme Court Justices concluded that the death penalty is unconstitutional, as Justice Stevens has.

    A solid case for racial bias, systemically, with the US death penalty, post Furman, is difficult to make (2), contrary to Justice Stevens' position.

    Justice Stevens continues the ignorance of not studying the underlying data within the McCleskey v Kemp case. He should, if he cares about the facts and the truth (3).

    Of course death penalty cases are prone to conviction. Prosecutors must be more sure of these cases than for any others, prior to pursuing a trial. And that should be what we all want. Justice Stevens, it is the responsible thing to do, for all cases, which must be proven beyond a reasonable doubt.

    Justice Stevens makes an odd complaint, that it taints the jury when prosecutors exclude jurors opposed to the death penalty. Judge, the only way to have a qualified jury, in all cases, is if all jurors can award all sentencing options which are available under law in any case.

    Justice Stevens, as all of us, are concerned about the risk of executing an innocent. The Justice reverses the reality.

    Possibly, 25 of the 8100 death sentences given since 1973 may be actual innocents, or 0.3% of those so convicted. They have all been released (4).

    Innocents are more at risk without the death penalty. (5)

    Unintended error cannot, per se, render anything unjust. Any innocent convicted, sentenced and/or executed is unjust, but cannot render the death penalty unjust.

    In the history of the US, it is very difficult to reach a consensus as to even one confirmed case of an innocent executed. (6) Has it happened? Reason concludes yes.

    However, the evidence that murderers harm and murder, again, is overwhelming and universally conceded. In addition, The death penalty offers more protection for innocents than lesser sanctions. (5)

    The death penalty is an enhanced protector of innocents and more innocents will die without the death penalty.

    All human endeavors will entail error. The best that humans can do is work to minimize such error.

    In the context of all human endeavors, either private or governmental, that do put innocents at risk, is there one which has a better track record than the US death penalty, when considering actual innocent deaths? Likely not.

    In the context of criminal justice, the evidence suggests that we have lost nearly 100, 000 innocents to murder, since 1973, by parolees, probationers and early releasees, who murdered after such release while under government supervision (7).

    The proof of an innocent executed since 1973? There is none.


  2. contd


    (1) The "Moderate Republican" Death Penalty Values of Justice Stevens: Do tormented victims matter?
    Lester Jackson Ph.D.,

    (2) Death Penalty Sentencing: No Systemic Bias"

    (3) a) "The Math Behind Race, Crime and Sentencing Statistics"
    John Allen Paulos, Los Angeles Times, 7/12/98

    b) "The Odds of Execution" within "How numbers are tricking you"
    Arnold Barnett, MIT Technology Review October, 1994

    c) A complete review of Joseph Katz' deconstruction of the Baldus database is required.

    (4) The 130 (now 138) death row 'innocents' scam"

    (5) a) "The Death Penalty: More Protection for Innocents"

    b) "Opponents of the Death Penalty Have Blood on their Hands", Dennis Prager, November 29, 2005

    (6) "The Innocent Executed: Deception & Death Penalty Opponents"

    (7) "Prisons are a Bargain, by any measure", by John J. DiIulio, Jr., New York Times, January 16, 1996