In his book, book, Six Amendments, U.S. Supreme Court Justice John Paul Stevens called for revising six of the amendments to the Constitution, including the Eighth Amendment, which he said should be modified to read, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”
The declaration was the culmination of years of increasing doubt about the use of the death penalty by Stevens, who died last month at the age of 99. In an interview with DPF board member and death penalty attorney Robert M. Sanger in 2016, Stevens said, “It seems to me that it really doesn’t make much sense for society to engage in such a wasteful enterprise when there are so many good arguments against going forward.”
As New York Times reporter Emily Bazelon wrote in a column after his death, Stevens “joined the court as a supporter of capital punishment (in 1975) but came to believe that it had failed in practice and should be outlawed.”
Bazelon notes that Stevens “struck an important blow against the modern death penalty” in his majority opinion in Atkins v. Virginia (2002), which barred capital punishment for the intellectually disabled, and in Lackey v. Texas (1995) Sanger points out Stevens “expressed serious concerns about the fairness of the death penalty and, in particular the length of time people stayed on death row.”
But both also note that Stevens voted with the majority to reinstate the death penalty in Jurek v. Texas (1976), ending the de facto moratorium the Court had imposed in 1972. (In an interview with ABC News in 2011, Justice Stevens said, “I think that I came out wrong on that.”)
Stevens’ conflicted feelings were clear when, in Baze v. Rees (2008), he authored a concurrence finding lethal injection constitutional, but, Sanger says, he “expanded on his shorter memorandum opinion in Lackey and detailed the failings of the death penalty in practice . . . [saying] ‘A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’ ”
And in separate interviews with Bazelon and Sanger about four years ago, Stevens, who retired in 2010, was no longer conflicted. As Sanger notes, “Justice Stevens opened the interview with a few remarks on ” ‘Why it is appropriate for this country to abolish the death penalty.’ ”
Photo: Justice Stevens being interviewed by Robert M. Sanger in February 2016.