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October 19, 2011

Interesting grousings about former Justice Stevens' recent grousings

Thanks to How Appealing, I saw this interesting new essay by LawProf Richard A. Epstein, which is titled, "Uneven Stevens: The former justice's outbursts are doing a disservice to the Supreme Court." This dynamic essay covers lots of ground, and concludes with these notable complaints about former Justice Stevens' recent complaints about capital punishment doctrine and policy:

Justice Stevens has come to regret his earlier decision to reinstate the death penalty after the Supreme Court had placed a moratorium on capital punishment in the 1972 case, Furman v. Georgia.

His earlier vote to reinstate the death penalty depended on the assumption that the states "had narrowed the category of death-eligible offenses and would enforce procedures that would minimize the risk of error and the risk that the race of the defendant or the race of the victim would play a role in the sentencing decision." But three decades later, he concluded that the Court, led by the conservative justices, was prepared to sustain procedures that did not meet his notions of fair process, such that he eventually concluded that the death penalty was "pointless and needless."

On this issue, I have a great deal of sympathy with Justice Stevens’ uneasiness about the death penalty. But it is hard to trace the line between that attitude and the constitutional text. The basic purpose of the “cruel and unusual punishments” clause is to prohibit certain forms of punishment. Its precise scope is left unclear, but various forms of torture, e.g., drawing and quartering, seem to fall within its natural scope. The death penalty does not seem to fall within the clause, for elsewhere in the Bill of Rights, the death penalty is expressly contemplated in dealing with double jeopardy, the presentation of cases to grand juries, and due process protections against the deprivation of life, liberty, or property.

A most unfortunate line of Supreme Court cases, which first held that this decision on the use of the death penalty was unconstitutional, set the Court on the wrong path. In his recent musings, Justice Stevens’ argument against the death penalty boils down to his judgment that the possibility of error in death cases is enough to tip the case in favor of its abolition.

In this instance, it is hard to see how this particular observation, whether true or false, is anything other than a straight political judgment unmoored from the text or purpose of the Constitution. There are in fact many individual cases in which I have been deeply troubled by the application of the death penalty. In some cases, it strikes me as a clear violation of the right to due process for the state to refuse to use DNA evidence to resolve uncertainty over the identification of the proper offender. But it is a stretch to say that procedural concerns in some cases should lead to a constitutional ban on the death penalty in all, especially since (as against the federal government) both the prohibition against cruel and unusual punishments and the guarantees of due process are both found in the Bill of Rights.

Taken as a whole, what is so troublesome about Justice Stevens’ general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required. Indeed, on his view of the world, constitutional law seems to depend on his own sense of right or wrong. That attitude is surely evident by his vote to concur in the decision of Justice Anthony Kennedy in Kennedy v. Louisiana to the effect that the Eighth Amendment prohibited the use of the death penalty for child rape on the ground that he, Justice Stevens, can best detect the evolving moral sentiments in the United States, when popular opinion runs pretty strongly the other way.

October 19, 2011 at 12:27 PM | Permalink


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This is really just a disagreement about constitutional interpretation, not about Justice Stevens's post-bench activities.

Posted by: Anon | Oct 21, 2011 3:03:53 PM

This is a tiresome claim:

"Taken as a whole, what is so troublesome about Justice Stevens’ general views is the unmistakable sense that he has erased the line between what he thinks of as politically unwise and constitutionally required."

Anon is correct -- this is a different of interpretation. It is tiresome and sad when difference in interpretative vision is treated by one or both sides as not really an honest disagreement of legal interpretation but illicit judicial activism. One side can be wrong while be quite honestly compelled by what they believe is constitutionally required.

Stevens in his Baze concurrence the summarized his position on the death penalty did not rest on the chance of error alone. It wasn't only procedural concerns in some cases either. Still, once a penalty is applied too arbitrarily, it very well can be a violation of due process if it's impossible to have a system where there is enough assurance of due process in some specific case. The crapshoot feared in Furman v. Georgia arises.

Posted by: Joe | Oct 21, 2011 10:19:11 PM

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