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November 28, 2010

Justice John Paul Stevens continues his campaign against the modern death penalty

As detailed in this New York Times article, which is headlined "Ex-Justice Criticizes Death Penalty," the most recently retired Supreme Court Justice is continuing to assail the modern administration of the death penalty in the United States.  Here is how the Times piece begins:

In 1976, just six months after he joined the Supreme Court, Justice John Paul Stevens voted to reinstate capital punishment after a four-year moratorium.  With the right procedures, he wrote, it is possible to ensure “evenhanded, rational and consistent imposition of death sentences under law.”

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional. But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.

In a detailed, candid and critical essay to be published this week in The New York Review of Books, he wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

The essay is remarkable in itself.  But it is also a sign that at 90, Justice Stevens is intent on speaking his mind on issues that may have been off limits while he was on the court.

In the process, he is forging a new model of what to expect from Supreme Court justices after they leave the bench, one that includes high-profile interviews and provocative speeches.  He will be on “60 Minutes” on Sunday night.

Retired Justice John Paul Stevens's piece in the New York Review of Books is a review of David Garland's book "Peculiar Institution: America's Death Penalty in an Age of Abolition."  It is now available at this link, and here are a few paragraphs from the start of the lengthy review:

David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.”  Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences....

[D]espite its ostensible amorality, his work makes a powerful argument that will persuade many readers that the death penalty is unwise and unjustified.

His explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York.  Some of his eminently readable prose reminds me of Alexis de Tocqueville’s nineteenth-century narrative about his visit to America; it has the objective, thought-provoking quality of an astute observer rather than that of an interested participant in American politics.

UPDATE: The 60 Minutes segment with JPS is now available at this link.

November 28, 2010 at 06:02 PM | Permalink


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There are several times more prison murders than executions. The end of capital punishment will immunize all crimes after the first murder. It is a license to kill better, and more convenient than that of James Bond. The end of capital punishment will increase prison murders. It will do so two ways. First, it immunizes the crimes of the murderer. Second, the sole remaining remedy to the future victims of the lawyer immunized murderer will be murdering him. Guards, prisoners, visitors, employees will have no choice but to arrange, enable, and encourage this remedy. It will result in more deaths of murderers than the death penalty.

Justice Stevens likely has a 50 point IQ advantage over me. Why can't he see that? Law school. Law school turned him into a lawyer dumbass. This is not an epithet, but a lawyer term of art for people with IQ's of 300 before entering law school, emerging with less reasoning than special ed student in Life Skills programs.

Posted by: Supremacy Claus | Nov 28, 2010 6:21:32 PM

Two observations:

1. Not a single new argument is advanced by Stevens.

2. "[Garland's] explanation of why the United States retains capital punishment is based, in part, on the greater importance of local decision-making as compared with the more centralized European governments with which he was familiar before moving to New York."

Fine. If Mr. Garland wants centralized decision-making, let's have it. Let's have a national, popular vote referendum on the DP, with all states to be bound by the results. Or, for those who don't like that, let's have the new Congress take a vote on the DP. Nothing like Congress, after all, for centralized decision-making.

Any takers?

Posted by: Bill Otis | Nov 28, 2010 8:16:07 PM

Supremacy Claus -

Sorry, people working at a prison will have 'no choice' but to allow the surviving family of murder victims to come into prison and murder the murderers? You know that the death penalty is illegal in fifteen states, right? Is there some spate of guard-assisted killings that has somehow escaped everybody's attention. I'm also curious about the mechanism by which these individuals will have 'no choice' - have prison been employing psychopaths? Or maybe weak-willed individuals who will help to kill if they're asked?

And you criticise Justice Steven's reasoning skills in the same post? Talk about pot. kettle. black.

Posted by: jsmith | Nov 29, 2010 12:16:15 AM

Smart administrations make homicide look like suicide, "He leaped head first down the long metal staircase. We tried to grab at his clothing but he slipped our grasp."

When combined, plan on over 20 unnatural deaths per 100,000 prisoners, per year. That is about twice the number of executions in the US. If a prisoner finds himself on suicide watch, and has never made a suicidal statement, something is up.

Does anyone think staff will allow the absolute immunity of the murderer after the first murder to allow the abuse of staff by the immune prisoner?

Posted by: Supremacy Claus | Nov 29, 2010 1:17:00 AM

No "new" argument is necessary. The arguments are well known and the penalty can rise or fall on the merits without new ones. As with film plots, "new" arguments by this date are hard to come by.

Posted by: Joe | Nov 29, 2010 9:48:49 AM

Here is how it's done, son.


Posted by: Supremacy Claus | Nov 30, 2010 7:40:06 AM

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