Former Justice Stevens Writes Massive Anti-Death Penalty Essay

A New York Review of Books piece brings him back into the national debate

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Believe it or not, 90-year-old retiree John Paul Stevens is on a media blitz. Granted, he's a retiree of a rather prestigious kind, being the third-longest serving Supreme Court justice in history. Still: look at him go--a piece about him in The New York Times, a 60 Minutes interview diving into Bush v. Gore, and more.

It seems to have started with a review of David Garland's Peculiar Institution: America's Death Penalty in an Age of Abolition. According to The New York Times' Adam Liptak, the editor of The New York Review of Books read part of the Stevens dissent on Citizens United (an entirely unrelated case) and got the idea of having Stevens review the death-penalty book. Apparently, Stevens was "'delighted.'" The resulting lengthy review is mostly summary, as Ann Althouse notes, but Stevens works in some side remarks, and at the end makes his own case for ditching the death penalty.

So how is this all being received? It appears Stevens's presence in this debate is attracting as much attention as the actual argument he's making.

  • The Case Against the Death Penalty  John Paul Stevens reviews the way in which the penalty has been inconsistently and unfairly enforced, including being given more often to murderers of whites than of blacks. "To be reasonable," he argues, "legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses." The classes are these: victims, survivors, "participants of judicial processes that end in executions," the "general public," and those actually on death row. The victims, he points out, are already dead "and so have no continuing interest." Survivors can never be compensated, he contends--and in any event, "we do not, after all, execute drunken drivers who cause fatal accidents." Those involved in the decision don't come out so well, and the general public doesn't get much either. The inmates clearly aren't benefiting. Thus, there's not much basis for the death penalty.
  • Ditto That  The New York Times' Bob Herbert reiterates the points about unfair implementation. "Prosecutors and judges in death penalty cases have been overwhelmingly white and male and their behavior has often--not always, but shockingly often--been unfair, bigoted and cruel. The Death Penalty Information Center has reams of meticulously documented horror stories." In addition, incompetence has led to the execution of innocents, as well as the execution of those who were guilty but denied due process--"executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers ... have been assigned to indigent defendants."
  • This Is Big  This is "surely the most significant book review from a Supreme Court justice, sitting or otherwise, since Justice William O. Douglas raved in 1962 about Rachel Carson's environmental classic, 'Silent Spring,'" judges Politics Daily's Andrew Cohen, adding that the book here was more of a "foil" as Stevens "unburden[ed] himself about the topic." Remarks Cohen: "It surely says something profound that two of the men responsible for the current iteration of the death penalty in America--Stevens and Blackmun, both Republican appointees--would so vocally change their minds about what they had done."
  • Stevens Is 'Forging a New Model,' writes The New York Times' Adam Liptak, "of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches." It's not just the essay itself, but 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."
  • This Reasoning Seems Suspect  Ann Althouse is nonplussed that all Stevens can think to say of the victims is that "they're already dead." Her response:
As if making murder a heavily punished crime doesn't prevent some people from becoming victims. Recent research undermines the convenient old assumption that the death penalty has no deterrent effect.  Stevens says nothing about that because, I suspect, Garland doesn't.
This article is from the archive of our partner The Wire.