Recently retired Supreme Court Justice John Paul Stevens has written a review of David Garland's new book on capital punishment. Among other things, it further explains Stevens' transition on the issue. Although Stevens was a co-author of the landmark 1976 Supreme Court opinions that reauthorized the death penalty after a four-year moratorium, in a 2008 concurrence he argued that the penalty represented "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes" and should be held unconstitutional under the Eighth Amendment.
This rich essay has more interesting facts and analysis. I was particularly interested in this evidence about the past effect of judicial elections on death sentences:
“In states where judges were until recently empowered to override jury sentences,” Garland explains, “elected judges typically used this power to impose death rather than life. In Alabama the death-to-life ratio of these judicial overrides was ten to one.” In Delaware, where judges are not elected, such decisions favored defendants. The “tight connection between legal decision-making and local politics produces…an obvious risk of bias in capital cases.” Popular opinion has less effect on criminal justice in Europe. European judges and prosecutors are typically tenured civil servants. Popular opinion thus has less sway over individual trials. This difference provides a powerful argument for opponents of judicial elections.
While judges can no longer override jury refusals to apply a death sentence, it is virtually certain that the effect of judicial elections has deleterious effects on civil liberties in other cases (including death penalty cases.)
Stevens' history of recent death-penalty jurisprudence will also be useful to many readers. I'm glad that he drew attention to Tison v. Arizona. Tison held that in some circumstances, the death penalty could be used as punishment for "felony murder" -- that is, cases where the accused did not kill anyone or intend to but was part of a criminal conspiracy that led to a murder. Not only is this hard to justify on its face, but it clearly reflects the arbitrary nature of the death penalty as currently practiced. If people who didn't even commit murder can be (and are) executed, the argument that the death penalty is reserved for "the worst or the worst" cannot be sustained. Combined with the procedural problems that make it all but certain that innocent people will be executed, this makes Stevens' argument against the death penalty compelling indeed.
--Scott Lemieux
