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September 29, 2011

Justice Stevens indicates he was wrong to uphold special Texas approach to death sentencing

This new ABC News report on a George Stephanopoulos interview with former SCOTUS Justice John Paul Stevens provides this interesting account of the Justice's latest thinking about various death penalty matters.  Here is how the piece starts:

Retired Justice John Paul Stevens is a man of few regrets from his nearly 35 years on the Supreme Court, except one – his 1976 vote to reinstate the death penalty.   “I really think that I’ve thought over a lot of cases I’ve written over the years.  And I really wouldn’t want to do any one of them over…With one exception,” he told me.  “My vote in the Texas death case.   And I think I do mention that in that case, I think that I came out wrong on that,” Stevens said.

At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said.  But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens.   The retired associate justice has been an outspoken opponent of the death penalty, but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week.

He writes in his book, “Five Chiefs,” that he regretted the vote “because experience has shown that the Texas statute has played an important role in authorizing so many deaths sentences in that state.”

In a recent Republican presidential debate there was a burst of applause after the moderator mentioned the 234 executions that occurred under Gov. Rick Perry.  Stevens said he was “disappointed” when he saw that reaction.   “Maybe one believes, and certainly a lot of people sincerely do, that it is an effective deterrent to crime and will in the long run will do more harm than good.   I don’t happen to share that view,” he said. “But there are obvious people who do.   And, of course, being hard on crime has been --always is politically popular, let’s put it that way.”

I interpret these comments as an indication that Justice Stevens still believes a narrow capital statute and a well-designed death sentencing process remains constitutional, but that he also has concluded that Texas legislators (and those of other states?) have failed to ensure their capital statute is sufficiently narrow and that their death sentencing process is well-run.

September 29, 2011 at 09:43 AM | Permalink

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Comments

A more pragmatic interpretation is that Justice Stevens believes that since 1976, there have been many unconstitutional executions resulting from the unforeseen, opportunistic, expansion from the narrow range of dp cases expected, and an improper advantage given to prosecutors. Since there is no obvious sign that this situation is about to alter (after 35 years!), and Justice Stevens couldn't influence the situation significantly for the better (except for the ban on juvenile executions, and a very limited success in reducing the execution of the mentally impaired), and that he would clearly have not voted to reinstate the death penalty in 1976, I think we can safely say that whatever theoretical belief he has in the death penalty, he understands that the process in practice has not and probably never will work in accordance with that theory ..... and therefore should be abolished.

Posted by: peter | Sep 29, 2011 10:50:23 AM

correction -
...and that he, in hindsight, should not have voted to reinstate the death penalty in 1976, ....

Posted by: peter | Sep 29, 2011 10:55:28 AM

His opinion in Baze v. Rees is the logical place to go. And, there, under current precedent, which if given a chance he would have voted to overturn, yes, a narrow capital scheme could be constitutional. And, if Justice Blackmun could have a pony, he might have decided things differently in Callins. But, as Peter suggests, the actual practice counsels that "life" is not taken with due process of law and won't be in the foreseeable future.

Posted by: Joe | Sep 29, 2011 11:01:31 AM

BTW, Mike Sacks has a good article on Stevens at Huffington Post, including a quote (if it's not there, it's some place else) saying the USSC followed precedent by turning down the Troy Davis final appeal but that it was unfortunate since there was a chance (if perhaps small) of mistake there.

Posted by: Joe | Sep 29, 2011 11:08:38 AM

"...but his admission of that 1976 Jurek v. Texas vote comes at a time when the country appears to be revisiting its stance on the death penalty, in light of Troy Davis’ execution last week."

Is anyone aware of actual evidence that "the country" is revisiting its stance on the death penalty? I am well aware that the ususal anti-DP crowd is up in arms, and that some vocal people who say they support the DP in general opposed the Davis execution. But I have not seen a whit of actual evidence that "the country" is revisiting its support for the DP.

Anybody got some?

Posted by: Bill Otis | Sep 29, 2011 11:35:12 AM

i liked this statement!

"At the time he thought the death penalty would be confined “to a very narrow set of cases,” he said. But instead it was expanded and gave the prosecutor an advantage in capital cases, according to Stevens."

Since you could use it almost word for word! when talking about the ever popular PLEA BARGAIN!

another brilliant from USSC that was to apply only in the most difficult cases that now is used in 90% or more of ALL CRIMINAL CASES!

Posted by: rodsmith | Sep 29, 2011 11:48:24 AM

How does one exactly determine objectively if "the country" is leaning in a certain direction? And, what does "revisiting" mean? Somewhat more concerned but still supportive in narrow cases? Sounds all pretty vague and subjective, so what "appears" to be occurring can reasonably go various ways, especially depending on your standards.

Posted by: Joe | Sep 29, 2011 12:31:55 PM

Callins v. Collins ... again.

Posted by: cmt | Sep 29, 2011 1:16:45 PM

Peter: "should not have *voted* to reinstate the death penalty"...

Judges vote? Unelected Jurists construct legislation?

Jefferson:
"[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . .

The Constitution has erected no such single tribunal."


Posted by: adamakis | Sep 29, 2011 3:06:32 PM

Evidence that the US is revisiting its stance on the death penalty: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/09/29/BAN51LAPF4.DTL&feed=rss.bayarea

Posted by: Jennifer | Sep 29, 2011 4:04:33 PM

adamakis--

Then who, pray tell, should be the ultimate arbiters of constitutional questions? Congress? I thought the point of separation of powers was precisely to avoid putting constitutional rights of a minority up to a majority vote.

The President? Gee, that would seem to give one man an awful lot of power...I think we fought a revolution over that one.

Judicial review is not without its problems, and we can point to plenty of examples of both liberal and conservative activism that are, shall we say, dubious. But it seems like our country has done pretty well with it since Marbury v. Madison. Congress seems to agree, given that it has a silver bullet in the constitution itself to halt all appellate review of constitutional questions, but never has except in highly limited circumstances. (e.g. AEDPA)

Posted by: Res ipsa | Sep 29, 2011 4:21:52 PM

@Jennifer
The article you posted placed support for the death penalty at 68%. A couple of points lower than before but it doesn't change the fact that support outnumbers opposition more than 2 to 1.

Posted by: MikeinCT | Sep 29, 2011 5:39:16 PM

I would say that I am fine with judicial review, Congress should not have the power to directly overturn court decisions. But I would also say that Congress should have convicted Chase on the articles of impeachment and set the precedent that the legislature would monitor the courts and rein them in if they step too far out of line. Two thirds of the Senate is a high enough bar to ensure that any conduct resulting in removal is far from acceptable. But instead Congress has completely abrogated its responsibility.

Posted by: Soronel Haetir | Sep 29, 2011 5:47:19 PM

The fact someone "supports the death penalty" (Obama supports the death penalty in certain cases) doesn't tell me much. It is how it is actually applied, push comes to shove.

Posted by: Joe | Sep 29, 2011 5:52:28 PM

Jennifer --

You submit the September Field Poll on the death penalty, published today, to support the proposition that the Troy Davis execution is prompting the United States to revisit its stance on the death penalty.

It does absolutely no such thing.

First, the poll is of California respondents, not the United States.

Second, the poll shows DP support at 68%, whereas the same poll taken in July showed support at 70%. That's a difference of 2%. But the poll's margin of error is 3.4%, meaning that, as a statistical matter -- and statistics is all we're talking about -- there has been no detectable change in DP support.

Third and most significant, the poll to which you refer was completed on September 12, more than a week before Davis was executed, and several days before his case started to recieve any sigfnificant media attention. Therefore, even if the poll reflected the entire country, and had a statistically significant difference from the prior poll, it would say nothing about whether Davis's execution -- at that point a future contingency -- has sparked a re-thinking of the DP.

Other than that, though, you're right on the money.

Posted by: Bill Otis | Sep 29, 2011 6:03:04 PM

Bill Otis is a 1974 graduate of Stanford Law School and has held a number of positions in the federal government. He started his career in the Criminal Division of the Justice Department, and in 1981 was asked to become head of the Appellate Division of the United States Attorney's Office for the Eastern District of Virginia. While in that position he argued more than 100 criminal appeals before the Fourth Circuit. He was a charter member of the Attorney General's Advisory Subcommitte on the Sentencing Guidelines, where he served for ten years. In 1992, he was detailed to the White House to act as Special Counsel for President George H. W. Bush. He left the U.S. Attorneys Office in 1999, but returned to federal service three years later as Special Assistant to the Secretary of Energy. In 2003, he was appointed Counselor to the head of the Drug Enforcement Administration, where he remained until 2007.

He has appeared before both Houses of Congress to testify on diverse subjects in criminal law including the death penalty, illegal drugs and the operation of the Sentencing Guidelines. A number of media outlets have interviewed him on these and other subjects, including CBS's "Sixty Minutes," "The O'Reilly Factor," ABC News and MSNBC. He has written several op-ed pieces for the Washington Post, covering everything from legal ethics to Scooter Libby's sentence commutation, and is an occasional contributor to the blog Powerline.

He and his wife split their time between their homes in suburban Washington, D.C and Hawaii.

Posted by: Jennifer | Sep 29, 2011 6:52:31 PM

Jennifer --

The reason I use my real name here is PRECISELY so that people can check me out if they care to, and because I welcome being accountable for what I say.

P.S. Now that we're clear on who I am, do you dispute anything I said in my post immediately before yours?

Posted by: Bill Otis | Sep 29, 2011 7:02:29 PM

"...a narrow capital statute and a well-designed death sentencing process remains constitutional, but that he also has concluded that Texas legislators (and those of other states?) have failed to ensure their capital statute is sufficiently narrow and that their death sentencing process is well-run."

Translation: A source of $billions in fees for appellate advocacy. Hobbled and rendered ineffective in violation of all principles of influencing behavior by its consequences.

Posted by: Supremacy Claus | Sep 30, 2011 12:55:51 AM

Jennifer: Bill is a fine person, with a fascinating career, but can you do the same review of your background and work history? Also tell us what you are wearing while doing that.

If you are a fat ugly, old FBI agent seeking to entrap a predator, be proud. Illegal alien gangs are beheading people who offended them and leaving the heads in heavy duty garbage bags, you worthless, lazy, slow shuffling, coffee swilling, 9/11 missing, government sinecure sitting, lawyer.

All kidding aside, do take years to wiretap and follow mob leaders before bringing indictments. You do not want to move too fast and have to actually do some work. Then allow 90% of serious federal crimes to go unanswered while selectively enforcing the rapidly multiplying number of Federal crimes enacted to take down the productive male and all successful businesses. None of these new crimes have any scientific nor even external validation. However, you excel at carting out boxes of documents and computers for newspaper photos. You excel at putting housewives selling a couple of ounces of dope in federal stir. You know, those really dangerous criminals, finally off the streets.

Posted by: Supremacy Claus | Sep 30, 2011 1:15:00 AM

Also, if you are an FBI agent, you put Martha Stewart away. Not only did she have the tidiest, and nicest looking prison cell, teaching her techniques to the other ladies there, she made a $billion from your idiotic case, brought for personal publicity. Her insider trading profit was $40,000, but putting her in jail dropped the value of her shares. She bought them, and they rebounded. You made this criminal a $billion. Great going, in criminal sentencing history. I doubt Prof. Berman covers that consequence of lying to the FBI and going to prison.

I doubt he covers how the FBI never found who shorted airline stock before 9/11, and made $millions from the attack.

Posted by: Supremacy Claus | Sep 30, 2011 1:24:26 AM

Or else the FBI knows exactly who shorted the stocks of airlines before 9/11, but those people were politically connected at the highest level and held hands walking the ranch together, and took rides in the boss's truck on a tour.

Posted by: Supremacy Claus | Sep 30, 2011 9:08:57 AM

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