Former Justice John Paul Stevens, who retired from the Supreme Court in June after turning 90, has come out swinging in the past few days against the death penalty. In an appearance on 60 Minutes on Nov. 28 and a New York Review of Books essay that is now online, Stevens makes the case that capital punishment as it is now administered in the U.S. is hopelessly flawed and unconstitutional.
In so doing, he is pushing the death-penalty debate just where it needs to go. Supporters and opponents generally argue over whether capital punishment is right in the abstract. The discussion often comes off as little more than late-night dorm-room philosophizing: "Killing is killing, even if the state does it," or "Are you saying that if the Allies caught Hitler, they shouldn't have executed him?"
Yet as Stevens frames the question, it isn't whether you believe in a death penalty it's whether you believe in the one the U.S. is using. It is a more relevant issue for those who care if the justice system is doing the right thing, and he makes a compelling case that none of us should.
Stevens who was appointed by a Republican President, Gerald Ford has not always opposed capital punishment. In 1976, shortly after he joined the court, he provided a key vote in Gregg v. Georgia, one of a group of cases that ended a de facto death-penalty moratorium that had been in place since 1972. He did not join the most liberal Justices at the time, William Brennan and Thurgood Marshall, who insisted that any executions violated the Eighth Amendment ban on cruel and unusual punishment.
In 2008, Stevens famously changed his mind. In a case challenging Kentucky's method of lethal injection, he said in a separate opinion that the court's decision in 1976 that capital punishment is constitutional was based on a belief that it would be applied in a way that would not be discriminatory, arbitrary, excessive or racially discriminatory. After three decades on the court, it had become clear to him that those conditions were not being met.
In his New York Review of Books essay, Stevens gives a fuller explanation of what made him turn away from the death penalty. As he saw it, the 1976 ruling argued for a careful and narrow use of capital punishment, but since then, the Supreme Court has made its use increasingly less careful and less narrow.
One factor that has Stevens and many other people questioning the death penalty is its unreliability. As Stevens points out, more than 130 people have been exonerated and released from death row since 1973, a number of them based on DNA evidence.
Another chief concern is race. In 1987, a challenge was brought to the death penalty that showed it was being used in a highly disparate way: in Georgia, murderers who killed white people were 11 times more likely to get capital punishment than those with black victims. Stevens, who dissented from that ruling, writes in his essay that the far greater punishment the system imposes for the killing of whites "provides a haunting reminder of once prevalent Southern lynchings."
Stevens is also troubled by the way key procedural rules have been rewritten to make it easier to put people to death. One change involves so-called death-qualified juries that is, juries that don't include people who oppose the death penalty. In 1968, the Supreme Court ruled that opposition to the death penalty is not a valid reason to exclude someone from a jury. If you allow jurors to be excluded on this basis, you end up with juries that are much more pro-prosecution, and prodeath penalty, than society as a whole. But three years ago, a bitterly divided Supreme Court undid that ruling and cleared the way for death-qualified juries.
Another change is in the use of victim-impact statements. In 1987, the Supreme Court ruled that having a jury hear the often emotionally wrenching stories of victims could unfairly inflame jurors and was inconsistent with the "reasoned decisionmaking we require in capital cases." Four years later, after turnover among the Justices, the court reversed itself over Stevens' dissent and ruled that these statements can be used.
Stevens' critique of death-penalty law is exactly right. It is also badly needed, as the court is becoming ever more enthusiastic about capital punishment and ever more indifferent to important details like how certain we are that the person facing execution is even guilty.
Last year, Justice Antonin Scalia wrapped that indifference in constitutional theory, strongly suggesting in a dissent in a Georgia death-penalty case that there is nothing unconstitutional about executing someone who turns out to be innocent, so long as they had a proper trial and appeals process.
A great deal of death-penalty arguments, both pro and con, fall on deaf ears. If you oppose the death penalty as morally wrong, you are not likely to be impressed by reasoned (if flawed) arguments that it might deter crime, for example, or that it has long had a central place in Western civilization. If you believe in capital punishment, you are unlikely to be moved by someone who simply says the state has no right to take a life.
Stevens' arguments are powerful precisely because they come from someone in the middle of the debate a man who long believed capital punishment was constitutional provided it was properly applied. His sharp critique should reinforce the resolve of those who do not support the death penalty and raise unsettling questions for those who do.
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board. Case Study, his legal column for TIME.com, appears every Wednesday.