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December 2, 2010

Justice Stevens' consistent belief in the death penalty and a notable attack on this reality

I have now had a chance to read closely retired Justice John Paul Stevens's piece in the New York Review of Books reviewing David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition" (discussed here; available here).  I actually see the piece as supportive of a narrow, well-functioning death penalty based on these two paragraphs:

Under Justice Stewart’s approach, a jury composed of twelve local citizens selected with less regard to their death penalty views than occurs today — in that respect, a truer cross-section of the community—would determine individual defendants’ fates.  Once chosen, such jurors would not be inflamed by victim-impact statements; they would be insulated from race-based decisions by prosecutors; and they would weigh the offender’s culpability against relevant mitigating circumstances in determining his fate.  There are crimes for which such a jury would almost certainly impose a death sentence if so authorized.  A portion of the Baldus study that Professor Garland does not discuss found a significant category of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to race.

The Michigan statute [abolishing the death penalty for all regular crimes in 1846] assumed that treason was one such offense.  Timothy McVeigh’s bombing of the federal office building named after Judge Murragh in Oklahoma City is surely another.  I imagine that attempted assassination of the Pope would qualify, as could murder of a law enforcement officer or prison guard, and perhaps the kind of crime — serial killing of students —described in Garland’s prologue.  Garland does not tell us whether he would be an abolitionist in such cases.  Rather than treating the death penalty as an all-or-nothing issue, I wish he had commented on the narrower regime that Justice Stewart envisioned.

I read these passages as an endorsement by Justice Stevens of a narrow death penalty that seeks to ensure that the truly "worst of the worst," but only the worst of the worst, are executed for their crimes.  (Also interesting here is the suggestion by Justice Stevens that attempted murder of the Pope would qualify as a "worst of the worst" offense.)

To his credit, David Von Drehle sees the nuance in Justice Stevens' position and he assails this position in this long Time essay headlined "Stevens' Death Penalty Case Lets Himself Off Too Easily." Here is a passage from this interesting essay:

In his recent essay, Stevens writes trenchantly about the major twists and turns, rulings and reversals, that have helped to make a ruin of death penalty law in the years since the troika endorsed guided discretion.  He decries decisions, where he dissented, that have made it easier to screen out death penalty opponents from capital juries, and re-opened the door for accomplices — and not just murderers — to face death sentences.  But what he omits is the fact that these and other disputed cases were rooted in the underlying failure of the original architecture.  Guided discretion is a concept at war with itself: it tries to open the process of handing out death sentences to the light of human judgment, while at the same time fencing it off from the taint of human passion and individual differences.

Simply put, the death penalty seeks to separate the very worst of the worst for ultimate punishment.  But it fails to appreciate that individual prosecutors, judges and juries will have their own ideas about who is "worst." In his essay, Stevens suggests that the impulse of the troika's work was to greatly limit and rationalize the use of the death penalty, guiding lower courts away from arbitrary, excessive or racially discriminatory conclusions, but it didn't work that way.  Within a few years of their decision, America's death rows were twice as populous as they had been before Furman. Today, a single death row — California's — houses more condemned prisoners than lived in all the prisons in the United States combined, back when the death penalty was struck down.  And what is the chance of being executed in the Golden State today?  About the same as being struck by lightning.

Guided discretion was an idea or theory that looked pretty on paper but could not survive contact with the real world.  One man's "worst" was another man's not-quite-so-bad. Within a short time after the Stevens-approved architecture was in place, judges across America were literally arguing in opinions over issues like whether it is worse to be shot at close range, with the gun cold against your head, or at longer range, with the attendant chance of maiming or slow death.  Worse to have your throat cut or to be stabbed multiple times in the chest?  Worse to die at the hands of a stranger or a loved one?  Multiply such riddles by several thousand and you can begin to understand why the death penalty machine in the United States rarely comes to finality.

In short, Von Drehle is embracing Justice Blackmun's end-of-service view that the modern "guided discretion" approach to the death penalty is doomed to fail.  But, I find myself always draw to the more nuanced view suggested by Justice Stevens even though I agree that "individual prosecutors, judges and juries will have their own ideas about who is worst."

I am always drawn to fixing the modern US death penalty because, when operating properly (as it does in many states and in the federal system), it gives every individual prosecutor, trial judge and trial jury (as well as appellate courts and governors) the chance to veto a death sentence if and whenever not fully convinced a defendant is truly among the "worst of the worst."  At the same time, preserving this system allows society to condemn Tim McVeigh and DC sniper John Allen Muhammad and Steven Hayes and other mass murderers to a more serious punishment than the long prison terms we (too readily) give to lots of lesser criminals.

December 2, 2010 at 10:24 AM | Permalink

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Comments

can the death penalty for only a very little number of persons be still constitutional in US ?

Posted by: claudio giusti, italia | Dec 2, 2010 12:14:25 PM

Justice Stevens does indeed let himself off too easy, but in the opposite direction from the one suggested by the article. If Stevens had provided the fifth vote to make Justice White's view the majority, the law of the death penalty would have been vastly better.

Posted by: Kent Scheidegger | Dec 2, 2010 12:27:32 PM

My question is: can it be fixed? Not in the metaphysical sense, but in the practical sense. Is there some conceivable case that would win five votes to overrule Furman and replace it with something rational?

Posted by: Marc Shepherd | Dec 2, 2010 5:58:43 PM

What a horrible lawyer rent seeking hyper-proceduralist. There are 17,000 extra-judicial executions in the US. Not a word about them from that waking nightmare for the American people.

Juries should be selected randomly, and no one should be able to evade jury duty. If one was a crime victim or related to one, should not be excluded.

The number of executions should be steadily increased until all crime disappears. There is a dose response curve to every remedy, and we should start to climb it. If we do not, we have allowed 1000's of extra-judicial executions and millions of criminally caused injuries with the foreseeability of planetary orbits. You may choose between criminal and victim. Appalling left wingers like Stevens and Claudio have cast their vote for the criminal, and condemned millions to severe harm and thousands to butchery type executions. These are morally reprehensible.

Posted by: Supremacy Claus | Dec 2, 2010 11:26:20 PM

"Is there some conceivable case that would win five votes to overrule Furman and replace it with something rational?"

It is not Furman that needs to be overruled, but Lockett. Cases presenting the question are rare, though, because the states have duly Lockettized their statutes and jury instructions.

Posted by: Kent Scheidegger | Dec 3, 2010 1:22:04 PM

"The number of executions should be steadily increased until all crime disappears"
Mamma mia! Is there a doctor ?

Posted by: claudio giusti, italia | Dec 3, 2010 5:01:07 PM

Perhaps the number of executions should increase until humankind disappears, and then we won't have to worry about criminals at all. As for the suggestion that Lockett is the problem, I accept the notion that the decision of a life or death sentence is a uniquely moral determination that requires consideration of both the life and criminal history of the defendant. In this way, death is different. I don't think the Supreme Court got that wrong, although I know Kent does.

Posted by: capitalhabeasatty | Dec 3, 2010 6:57:50 PM

"I accept the notion that the decision of a life or death sentence is a uniquely moral determination that requires consideration of both the life and criminal history of the defendant. In this way, death is different."

Talk about claptrap. The "uniquely moral decision" really amounts to "Do we feel sorry for this murderer?" In the real world, people with moral courage make weightier decisions all the time. An easy hypo proves just how silly this idea is--what's a worse injustice, a citizen wrongfully convicted of a minor felony or a killer who for whatever reason shouldn't have gotten the death penalty who got it. Put another way, if a person were faced with a choice about righting a bad conviction for rape and getting a murderer off death row because it shouldn't have been imposed on, what would be the right thing to fix. Anyone who says that the death row mistake should be fixed instead of the rape is a moral pygmy. Therefore, it has to be the case that this "uniquely moral determination" is relatively low on the hierarchy of decisions that the criminal justice system asks that jurors make.

Posted by: federalist | Dec 3, 2010 10:29:06 PM

"Perhaps the number of executions should increase until humankind disappears, and then we won't have to worry about criminals at all."

This sort of sarcastic hysteria by abolitionists goes well beyond what is usually meant by "strawman." According to capitalhabeasatty, to support a more robust DP is to want to eradicate the human race.

This is what abolitionism has come to.

Posted by: Bill Otis | Dec 4, 2010 9:09:22 AM

Otis is a clown.
In the abolitionist Italy this year homicides will drop from 600 to 500.

Posted by: claudio giusti, italia | Dec 4, 2010 4:09:12 PM

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