Justice John Paul Stevens struck an important blow against the modern death penalty 17 years ago in a Supreme Court decision barring capital punishment for intellectually disabled people.
In his majority opinion in Atkins v. Virginia, Justice Stevens said the “cognitive and behavioral impairments” of the intellectually disabled made them “less morally culpable” and put them at “special risk of wrongful conviction.” Those defendants, he warned, would be more prone to give false confessions and less capable of helping their lawyers mount a strong defense.
It was a step toward greater humanity in the law from a justice who joined the court as a supporter of capital punishment but who came to believe that it had failed in practice and should be outlawed. His willingness to wrestle publicly with this deep and divisive question, and to shift his views, was rare for any judge, let alone a Supreme Court justice.
But Justice Stevens, who died Tuesday at age 99 from complications of a stroke, believed in making what he called “careful, reasoned” judgments based on evidence from the world around him. And for him, the death penalty, while perhaps defensible in theory as the ultimate penalty for the ultimate crime, proved over his tenure to be haphazard and mistake-prone in its application and, as plenty of evidence showed, racially discriminatory.
At the time of the 2002 Supreme Court decision, 18 states had recently ended the death penalty for intellectually disabled defendants, joining a dozen that had previously done so or had abolished the death penalty entirely. To Justice Stevens, that meant the standards of decency that the court used to determine when a punishment crossed the constitutional line had evolved into the “cruel and unusual.”
“Over the years I became more and more unhappy with the failure of the court to impose adequate procedures in capital litigation,” he told me when I interviewed him four years ago. “I dissented in the ways we allowed for picking juries and on the permissible scope of evidence allowed in a death penalty hearing. I became increasingly disenchanted with the operation of the death penalty. I did conclude in my own mind that it was unconstitutional. Because it had some seriously harmful effects.”
His conclusion was a long time coming. When he joined the court in 1975, Justice Stevens formed a middle-ground alliance with two moderates on the court, Justices Potter Stewart and Lewis Powell, according to Evan Mandery, author of “A Wild Justice.” The three justices decided to let states keep capital punishment as long as it wasn’t mandatory; a state would have to give a jury the power to spare a defendant’s life. In 1976, Justice Stevens joined Justice Stewart’s opinion in Gregg v. Georgia cementing the status of capital punishment as an “expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.”
At the same time, the court had to decide whether to uphold or strike down the law governing the death penalty in Texas. The state imposed the death penalty, in many murder cases, if a jury had found merely that a defendant killed deliberately and posed “a continuing threat to society.” But the law made no mention of reasons a jury might decide to grant mercy. Did this, in effect, make the death penalty mandatory? Professor Mandery, who teaches at the John Jay College of Criminal Justice, says that Justices Stevens and Stewart wanted to strike down the law, but that Justice Powell disagreed. In the end, the three justices joined together in an opinion, Jurek v. Texas, upholding the Texas death penalty.
“I regret that vote because experience has shown that the Texas statute has played an important role in authorizing so many death sentences in that state,” Justice Stevens wrote in his memoir, “Five Chiefs,” published in 2011 after his retirement. In Texas, the path to the death penalty did not narrow, as he had hoped. It widened, with more than 560 executions from 1976 to now — more than four times the number in any other state.
The distance Justice Stevens traveled over a quarter century was the path from novice to veteran. Supreme Court justices hear many death penalty appeals. Called upon time after time to stop or delay an execution, the justices come to know this aspect of criminal law perhaps more closely than any other. They oversee the country’s long-running “death penalty experiment,” as Justice Harry Blackmun put it. They are effectively in charge of the lab. Over the years, Justice Stevens became increasingly haunted by the probability of a wrongful execution. That was what made the difference.
“Well, on the death penalty itself, if they” — meaning Texas and other states — “had enforced the procedural safeguards I thought were going to be enforced, I’m not sure it would be unconstitutional,” he told me. “Well, I guess it would be. I guess I’d have to say it’s a relic of the past and it should be buried.”
In 2008, Justice Stevens renounced the death penalty as a “pointless and needless extinction of life” while he also voted to impose it in the case then before the justices, out of respect for the court’s previous decisions. It was an imperfect kind of reckoning. But, as it had turned out, Justice Stevens’s 2002 opinion in Atkins helped further narrow the death penalty’s scope, as he’d hoped. That decision laid the foundation for the court’s ruling three years later ending the death penalty for those who commit capital crimes before the age of 18.
Justice Stevens wrote separately in that 2005 case, Roper v. Simmons, to affirm his belief that constitutional interpretation is and must be an evolving process. “That our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text,” he said, referencing the nation’s fourth chief justice.
That same year, Justice Stevens said in a speech that “learning on the job is essential to the process of judging.” He didn’t see himself as in any way infallible. To the contrary. And that was his strength as a judge.
Source: New York Times, Opinion, Emily Bazelton, July, 2019. Emily Bazelon is a staff writer at The New York Times Magazine and the author, most recently, of “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.”
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde