Supreme Court

Too Little, Too Late? Justice John Paul Stevens Takes Aim at the Death Penalty

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In his 2011 memoir Five Chiefs, retired Supreme Court Justice John Paul Stevens said he was wrong to repeatedly vote in favor of the death penalty during his lengthy legal career. "I should have voted differently" in one such case from Texas, Stevens wrote. "I regret that vote because experience has shown that the Texas statute played an important role in authorizing so many death sentences in that state."

Stevens has now written a new book, Six Amendments: How and Why We Should Change the Constitution, and as Andrew Cohen observes at The Atlantic, the retired justice has doubled down on his opposition to the death penalty. For example, here is one of Stevens' proposed tweaks to the text of the Constitution:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.

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Cohen admires Stevens' aggressive new opposition to capital punishment but is more than a little annoyed about how long it took him to change his mind. "It's never too late for redemption, I suppose (unless you are one of those innocent men executed in America since capital punishment returned in its modern form in 1976)," Cohen quips. Perhaps Stevens' days as a darling of the left are finally numbered.

But there's one more big issue lurking under the surface here: respect for legal precedent. In the 2008 case Baze v. Rees, the Supreme Court ruled that Kentucky's use of lethal injection did not qualify as "cruel and unusual" under the Eighth Amendment. Justice Stevens joined in that outcome, but also filed a separate concurrence where he said the death penalty was unconstitutional in all forms. How did he reconcile those clashing positions? "This Court has held that the death penalty is constitutional," Stevens wrote, "and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents…I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky's lethal injection protocol violates the Eight Amendment." Put differently, Stevens did not like those precedents, but he believed he was bound to follow them.

Was he right to do so? Or should Stevens have come out squarely against the death penalty, precedent be damned?

Setting aside the particulars of the death penalty debate, my own view is that the Supreme Court should be paying more attention to the text and history of the Constitution and less attention to its own precedents. Unfortunately, that view has yet to command a lasting majority on the Supreme Court.