In a review of New York University law professor David Garland’s book, Peculiar Institution: America’s Death Penalty in an Age of Abolition, former Supreme Court Justice John Paul Stevens offers a detailed critique of America’s capital punishment system, citing racism and conviction-prone juries as among its serious flaws.
Justice Stevens two years ago in his concurring opinion in Baze v. Rees concluded that “the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”
His latest writing on the death penalty criticizes recent Supreme Court decisions that have “impeded reasoned jury decision-making” by permitting inflammatory victim impact evidence and broadened the death penalty by allowing execution of defendants who do not kill or intend to kill.
Justice Stevens explains that the Court’s acceptance of skewed and conviction-prone juries — what Justice Stewart called “hanging juries” — composed only of people who support the death penalty “as a fair cross-section of the community” further has allowed arbitrariness and unfairness in the death penalty system to go unchecked.
Justice Stevens also condemns the Court’s total failure to confront “readily identifiable” and “statistically significant” evidence that prosecutors’ decisions about whether to seek the death penalty are infected by racism. He writes, “That the murder of Black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings.”
Notable for his candor about the effect of “personnel changes” on the Court’s death-penalty jurisprudence, Justice Stevens also goes beyond constitutional analysis to discuss the politics and policy of the death penalty in America.
“[L]ocal elections affect decisions of state prosecutors to seek the death penalty and of state judges to impose it,” Justice Stevens writes. For example, Alabama is one of only three states that allow a trial judge to override a jury sentences, and is the only one of these three that elects trial judges in partisan elections. As Professor Garland observes, the death-to-life ratio of these judicial overrides was ten to one in Alabama, but in Delaware, where judges are not elected, such decisions favored defendants. Justice Stevens notes that the “tight connection between legal decision-making and local politics produces . . . an obvious risk of bias in capital cases.”
Citing its outsized financial and human costs, as well as “the risk that the state may put an actually innocent person to death,” Justice Stevens concludes that the death penalty is unreasonable policy.