Why Don't Supreme Court Justices Ever Change Their Minds in Favor of the Death Penalty?

Harry Blackmun, John Paul Stevens, and Lewis Powell—all appointed by Republican presidents—started out as supporters of capital punishment. Their decades-long study of capital cases made them see things differently.
Justices John Paul Stevens (left) and Lewis Powell (center) eventually recoiled from supporting capital punishment. (Eric Risberg/Associated Press)

If you spend any time at all studying the death penalty in America today you eventually come across an immutable truth:  No one who digs deeply into these grim cases ever seems to evolve from being a staunch opponent of capital punishment into being a fervent supporter of the practice. The movement, over the past 40 years anyway, has almost always been in the opposite direction: The closer one gets to capital punishment, the more dubious it appears to be.

This has been particularly true of Supreme Court justices since the death penalty was resurrected in America in 1976: The closer these esteemed jurists have gotten to "the machinery of death," the more flawed convictions and death sentences they were forced to review, the more racial inequality they saw in its application—and the more likely they were to recoil from the arbitrary imposition of capital punishment in those states that still practiced it.

This is just one of the many important takeaways from the book of the year about the death penalty, Evan Mandery's work titled "A Wild Justice: The Death And Resurrection of Capital Punishment in America." I will have more on the book—as well as an online interview with Mandery—in a related post tomorrow here at The Atlantic. But for now let us focus on four Republican-appointees to the Supreme Court and the impact their decades-long focus upon capital cases had upon their judicial philosophies toward executing condemned murderers.

Take Justice Lewis Powell. In 1976, the Nixon appointee voted in Gregg v. Georgia to reinstate the death penalty after a four-year hiatus. (He also had dissented, strongly, from the Court's fractious 1972 decision in Furman v. Georgia that temporarily brought capital punishment to a halt.) In McCleskey v. Kemp, in 1987, he wrote the majority opinion denying racial bias in the system, even though evidence showed that defendants who had murdered white victims received more death sentences than those whose victims were black.

But Justice Powell later came to publicly regret those views. Late in life, he told his biographer, John Jeffries: "I have come to think that capital punishment should be abolished." His thinking evolved, Linda Greenhouse wrote in her New York Times' obituary of Powell in 1998, "based on pragmatic concerns rather than on questions about the morality or constitutionality of the death penalty itself." Doubts about the death penalty could never be resolved and would inevitably bring the judicial system itself into disrepute, the justice concluded.

Or take Justice Harry Blackmun. In 1976, the Nixon appointee also voted to reinstate the death penalty even though he was personally opposed to it. Nearly two decades later, however, shortly before he resigned from the Court, he wrote in a Texas capital case that he would "no longer tinker with the machinery of death." That's the phrase that always gets cited. But what Justice Blackmun wrote next in Callins v. Collins in 1994 goes to the heart of the matter. His experience on the bench had soured him on the experiment of capital punishment:

Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

The basic question—does the system accurately and consistently determine which defendants "deserve" to die?—cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, relevant mitigating evidence to be disregarded, and vital judicial review to be blocked. The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution. (Citations omitted by me)

Almost exactly 20 years after Justice Blackmun wrote those words, every single failing he identified about capital punishment still exists. The Supreme Court—far more conservative today than it was in 1994—continues to labor under the convenient delusion that there are sufficient "procedural rules or substantive regulations" to ensure that capital punishment is applied fairly and accurately. The sad truth, however, is that "factual, legal, and moral error" are still rampant in those states that cling to capital punishment.

But don't just take my word for it. Take the word of retired Justice John Paul Stevens. In 1976, the Ford appointee also voted in Gregg to reinstate the death penalty. In 2008, however, in a Kentucky case styled Baze v. Rees, he announced that he had changed his mind. Evaluating capital punishment for nearly a third of a century on the highest court in the land, Justice Stevens wrote, had allowed him to reach certain conclusions about the misapplication of the death penalty. He emphasized four specific concerns:

Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction.

Our former emphasis on the importance of ensuring that decisions in death cases be adequately supported by reason rather than emotion has been undercut by more recent decisions placing a thumb on the prosecutor’s side of the scales.

A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases.

Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. (Citations omitted by me)

The systemic problems with capital punishment that Lewis Powell mentioned in 1991, and that Justice Blackmun identified in 1994, had not been cured by the time Justice Stevens identified them in 2008 (and again in 2010, in The New York Review of Books, in a review in which he lamented the Court's broadened application of capital punishment). Nor has the Supreme Court addressed, let alone resolved, these problems in the years since Justice Stevens retired. Just last month, the justices refused even to hear an Alabama case in which an elected judge overrode a jury's sentencing verdict and imposed a death sentence.

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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