Justice John Paul Stevens issued a stinging criticism of the death penalty in a speech last night to the American Bar Association.
Justice Stevens Criticizes Death Penalty (AP)
Supreme Court Justice John Paul Stevens issued an unusually stinging criticism of capital punishment Saturday evening, telling lawyers that he was disturbed by “serious flaws.” Stevens stopped short of calling for an end to the death penalty, but he said there are many problems in the way it is used. Recent exonerations of death row inmates through scientific evidence are significant, he told the American Bar Association, “not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice.”
Other Supreme Court justices, including Sandra Day O’Connor and Ruth Bader Ginsburg, have also spoken out about concerns that defendants in murder cases are not adequately represented at trial. But Stevens, 85, made a much harsher and sweeping condemnation. He said the jury selection process and the fact that many trial judges are elected also work against accused murderers. He also said that jurors might be improperly swayed by victim-impact statements.
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Stevens made his exceptionally frank and surprising comments in Illinois, his home state and a place that has been roiled by controversy over the death penalty. In 2000, wrongful convictions led then-Gov. George Ryan to halt all executions. It also came just a day after a Virginia jury decided against the inmate whose case led to the 2002 ban on executing the mentally retarded. The jury said Daryl Atkins was mentally competent and could be put to death. The judge immediately scheduled a December execution date.
Stevens’ audience included his wife and Cecilia Marshall, widow of Justice Thurgood Marshall. Marshall, the Supreme Court’s first black member before retiring in 1991, was a critic of the death penalty and argued that it was unconstitutional under any circumstances. “Since his retirement, with the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously,” Stevens said during a dinner named for Marshall.
He said Supreme Court cases have revealed that “a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial.”
In addition, Stevens said he had reviewed records that showed “special risks of unfairness” in capital punishment. Juries might not be balanced because people who have qualms about capital punishment can be excluded by prosecutors, he said. And he questioned whether potential jurors are distracted by extensive questions about their views on the death penalty.
In addition, Stevens said a statement from a victim’s family sometimes “serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.”
Stevens is right that there are some serious disparities in the system. Listening to “Fox News Sunday” a couple minutes ago, they replayed a “Power Player of the Week” segment about a high priced D.C. criminal defense attorney who has not lost a case since 1973. One suspects he has not had the fortune to have nothing but innocent clients during that span of time. Most criminal defendants, however, do not have several million dollars to spend in their defense.
The question, though, in the case of a Supreme Court Justice, is the extent to which his considered public policy views encroach on his interpretation of the Constitution. Rather plainly, the death penalty is perfectly constitutional. It is, after all, specifically permitted in both the 5th and 14th Amendments. Abolishing the death penalty may be the right thing to do. That determination, though, is properly the place of the legislature rather than the courts.
Correction: The original erroneously referred to the 6th Amendment rather than the 5th.
