Justice Stevens Speaks His Mind

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With his lifetime of experience, the former Supreme Court justice has more than earned the right to comment on crime, racism, drug legalization, or any other legal issue he pleases

 
stevens-body.jpgSuddenly, John Paul Stevens is everywhere. The retired Supreme Court justice has chimed in on the death penalty, written his memoirs, spoken about judicial ethics, and called the Bush v. Gore case "frivolous." And last week, in a chatty essay for The New York Review of Books, he offered some insight into the chaos (and inherent unfairness) that is the criminal justice system in America. At the age of 91, Stevens evidently has a lot to say after 35 cloistered years on the Court.

Some people are annoyed by Stevens' high profile. They think it's unbecoming for a retired justice to speak out so candidly on live legal issues. On the right, they conveniently cast Stevens' recent pronouncements as proof of his "liberal" nature, allowing them to ignore the fact that the High Court moved further to the right than the Ford appointee moved to the left during his tenure. Me? I think it's great that the man is speaking out and speaking up. He's earned the right, first of all, and he also happens to be a natural and excellent legal analyst.

His latest essay -- "Our 'Broken System' of Criminal Justice," from the New York Review of Books -- is a great example. In it, Stevens does a great job not just of translating the language of the law to lay people -- which is the most important thing a legal analyst can do -- but also providing the sort of context and perspective that only a retired Supreme Court justice can offer. Here, Stevens is a pivot for the rest of us; he links us to the legal and political history behind the criminalization of American life while showing us how that past directly impacts modern jurisprudence. 

Moreover, there is a layer of poignancy surrounding this particular essay, which reviews a book called The Collapse of American Criminal Justice. Here's an old man, a famous mentor, having a one-way conversation with a younger man, perhaps a one-time mentee, about a profound problem that affects millions of Americans. I say one-way sadly because William J. Stuntz, the well-liked law professor who wrote the book Stevens reviews, died earlier this year, way too early, of cancer. Stuntz clerked for Justice Lewis Powell, an early contemporary of Justice Stevens on the bench.

Atlantic colleague Ta-Nehisi Coates already has written briefly about Stuntz's book itself. I want instead to quickly highlight a few points Stevens makes:

1. He disagrees with Stuntz's ultimate conclusion. Stevens writes: "Rather than a 'collapse,' however, these figures suggest to me that the current system of criminal law and enforcement (like too many of our citizens) has grown obese."

2. He makes an interesting point about crime and neighborhoods. Stevens writes:

It is fair to infer, however, that the relationships between the police and the residents of high-crime neighborhoods have a significant impact on the amount of crime that prevails in those areas. The dramatic difference in the homicide rate in the area where I grew up and President Obama live before moving to Washington -- "Chicago's upscale, racially integrated but mostly white Hyde Park"-- and the "neighboring Washington Park, with a poor, 98 percent black population," certainly suggests that there is a material difference in the quality of police protection available in those areas. In Hyde Park, the homicide rate is 3 per 100,000; in Washington Park it is 78 per 100,000.

These facts allow Stevens to compare the wisdom of "a more prompty and vigorous attempt to take affirmative steps to enlist black police officers to protect black neighborhoods with which they are locally connected" with the gist of the legal briefs he read from military officials when the Court considered the recent affirmative action case of Grutter v. BollingerStevens writes:

The reasons for taking positive steps to create a diverse officer corp in the military surely apply as well to the need for staffing urban police forces with officers who are capable of relating to the communities they are responsible for protecting. Officers who inspire the trust of members of those communities may more effectively encourage crime-reporting and other forms of cooperation by them.

It's hard not to think of the Court's 2009 (5-4) decision in Ricci v. DeStefano, the reverse discrimination case involving New Haven's firefighters, while reading Stevens on this point.

3. He writes about the 14th Amendment and Stuntz's theory that its "failed promise" during Reconstruction continues to cause trouble today. Stevens writes that two important Supreme Court decisions from which he dissented, McCleskey v. Kemp in 1987 and U.S. v. Armstrong in 1996, "do indeed support the thesis that the Court has tolerated law enforcement practices that are discriminatory against African-Americans."

4. He makes an important (if somewhat implicit) point about the legalization of marijuana, or at least about a serious discussion of the topic. Stevens writes:

Stuntz describes some harms of alcohol consumption and criticizes Prohibition, but he does not address facts about Prohibition's enforcement costs or the consequences of its repeal... Such a discussion of the plusses and minuses of the repeal of Prohibition might have provided information relevant to a debate on the wisdom of current drug enforcement policies... the absence of developed debate among present-day political leaders about drug policies is striking in light of the openness of the debate among political leaders in the 1920s and 1930s.

5. He offers insight into the "very live debate among the current members of the Supreme Court about the extent to which the Confrontration Clause of the Sixth Amendment -- the right of the accused "to be confronted with the witnesses against him"-- requires the exclusion of certain evidence obtained from witnesses who are unavailable at the time of trial." Stevens is very much in favor of a broad interpretation of the clause-- and notes that his former colleague, Justice Anthony Kennedy, likely is not. Of cross-examination of forensic experts, Stevens writes:

Cross-examination permits a criminal defendant to probe the analyst's competence, training, judgment and incentives or pressure for manipulation of the results. Such questioning can expose flaws in the forensic testing process that undercut the reliability of such evidence, the very reliability about which Stuntz expresses concern.

Lord knows, the world doesn't need any more lawyers. But it can always use a good legal analyst. I hope Stevens continues to speak out and write about the law. If he educates only one viewer or reader at a time, he'll be doing the nation another great service.

Image: Reuters
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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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