Justice Stevens' Difficult Relationship With the Death Penalty

Once a proponent of the death penalty, and later a fierce and eloquent critic, Justice Stevens' journey reflects a wisdom developed during an epic career on our nation's highest court.

Nominated by President Ford on November 28, 1975, Stevens was chosen as a moderate Republican — hardly a divisive, right-wing ideologue in the more modern mold. As Ford's sole nominee to the Supreme Court, his career oversaw some of the most dramatic policy shifts on the death penalty in U.S. history.

When the Supreme Court struck down the death penalty in the 1972 case of Furman v. Georgia, many thought that it was the end of executions in the United States. But just four years later, Gregg v. Georgia challenged that view. In Gregg, seven justices — including Stevens — deferred to states' pleas to reinstate the death penalty under new procedural safeguards against capricious juries. They concluded states had the right to execute convicted murderers, and that the punishment wasn't needlessly excessive or unjustified. It was a decision that would bind Stevens to uphold the death penalty once again over 30 years later, against his better understanding of both capital punishment and our Constitution.

By 2008, when the Supreme Court was again asked to review questions of the death penalty, its composition was radically different from the one Stevens joined at the end of 1975. Each of the justices confirmed after Stevens shifted the Court to the right (with the exception of Ruth Bader Ginsburg, in 1994). Not unrelated to this tectonic shift, of course, was the emergence of an activist, conservative legal movement that continues to dominate other voices today.

The question raised in 2008's Baze v. Rees was whether the three-drug cocktail used by most states in a lethal injection to kill inmates was constitutional. Stevens ultimately joined the seven-justice majority, which found that under Furman, the Court was bound to uphold lethal injection's constitutionality. But in his concurring opinion, Stevens eloquently and thoroughly rebuts every policy and constitutional argument in favor of the death penalty — even those he would have himself agreed with decades prior.

Reading Stevens in Baze is like watching an architect work in reverse. Stevens lays out the arguments for executing inmates before dismantling each of them with the elegant precision of a master jurist. Murderers would be equally incapacitated by life in prison without parole, Stevens observes, so you can't justify the (irreversible, error-prone) death penalty on those grounds. He notes that 30 years of empirical research have failed to confirm the death penalty's deterrent effect. And he explains how the idea of retribution — the notion that some crimes are so heinous that the perpetrator deserves death — creates a slippery slope towards ever more painful and public methods of execution, which should repulse any civilized society.

"The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult," Stevens wrote. "It does not, however, justify a refusal to respect precedents that remain a part of our law."

So even as the unacceptable and gruesome nature of the death penalty weighed heavily on his heart, Stevens bowed to precedent and voted with the majority to uphold it. But he was clearly burdened by his disagreement with the policy and perhaps his vote over 30 years prior, which — no matter his current feelings — he felt was due a modicum of respect.

Stevens' respect for precedent, however reluctant, stands in contrast to the conservative Roberts Court's eagerness to assert its policy preferences over the procedural and legislative obstacles that ought to bind a judge. Who's the judicial activist now?

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