Stevens' Case Against the Death Penalty: Shirking the Blame

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Mark Jenkinson / Corbis

Suppose that you hired a highly regarded architect to design a fancy house. He comes up with the most impressive and elaborate plans, but all the basic calculations about stresses and loads are completely wrong, and from the moment you open the front door, the place starts falling apart.

Still, you have a lot invested in the house, and you don't want to tear it down, so you bring in an engineer who proposes that you jack up the north wing, and when that doesn't work, you hire a contractor who advises you to instead lower the south wing. One expert suggests reinforcing the foundation. Another expert tells you to redesign the roof.

You try them all, and more. And this goes on for years, plunging you into debt, baffling your neighbors and never bringing you closer to fixing your house, which looks more and more hopeless with each new "repair." Then one day, the original architect comes by, sees the ruin, shakes his head sadly and asks why, oh why, you let all those butchers tinker with his beautiful design.

That's essentially what retired Supreme Court Justice John Paul Stevens, an architect of America's wreck of a death penalty system, has been doing in recent days. In an essay in the New York Review of Books, and again in an interview on 60 Minutes, Stevens has been busy blaming others for a mess of his own creation.

His revisionist history has been widely praised — including by's legal columnist — and that's understandable. Stevens is an excellent writer and a charming talker, and he says a number of true things about the death penalty. The system consumes an extraordinary amount of judicial resources to resolve a vanishingly small number of cases. Meanwhile, more than 3,000 condemned prisoners languish indefinitely in expensive death-row lockdowns — many of them for more than a quarter-century and counting. This makes a mockery of the idea of finality in the justice system, and makes our legal institutions look feckless. Stevens hits the nail on the head when he writes, "While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system."

But those extraordinary costs, in dollars, in years and in frustration, did not begin tolling — as Stevens suggests — with the arrival of Justices appointed by Ronald Reagan. The system was broken from Day One, doomed by an unworkable design that Stevens helped dream up.

This is complicated — that's the root of the problem — but bear with me as we return to the mid-1970s, when Stevens was a freshly minted Justice and the court had a problem on its hands. In 1972, the Supreme Court had struck down all existing capital-punishment laws in one of the most far-reaching opinions in its history, called Furman v. Georgia. The 5-to-4 decision, the longest in the court's history, nullified hundreds of laws in nearly 40 states and jurisdictions, and commuted some 600 death sentences.

Yet it failed to define any principles going forward. Furman was a jumble of separate opinions, often at odds with one another. All nine Justices weighed in at great length. William Brennan and Thurgood Marshall wrote that the death penalty could never be constitutional. Somehow, they wound up on the same side with Byron White, who wrote that the death penalty, to be constitutional, must be used frequently.

States rushed to pass new laws that would somehow navigate this judicial labyrinth. They fixed on an idea best stated in the opinion by Potter Stewart, who maintained that the death penalty had become unconstitutionally arbitrary — judges and juries imposed the sentence with little or no guidance, and sentences were rarely carried out because of increasingly effective appeals. Stewart compared the chance of being executed to that of being struck by lightning.

The new laws fell roughly into two camps. Some states tried to take the arbitrariness out of capital punishment by making it mandatory for all aggravated murders. Other states instituted an elaborate weighing system in which prisoners convicted of capital crimes received a second trial to determine whether they should be executed. And after that, the trial court proceedings were automatically reviewed by state supreme courts.

That's where Stevens enters the picture. Appointed to the court by Gerald R. Ford in 1975, the dapper judge from Chicago was seated in time to pass judgment on the new laws. He joined Stewart and Justice Lewis Powell in a decisive troika that struck down mandatory sentences in 1976 by a vote of 5 to 4. And in the same set of opinions, known by the title of the lead case, Gregg v. Georgia, the troika cast the decisive votes to uphold the complicated weighing system dubbed "guided discretion" by 7 to 2.

In his recent essay, Stevens writes trenchantly about the major twists and turns, rulings and reversals, that have helped make a ruin of death-penalty law in the years since the troika endorsed guided discretion. He decries the decisions that have made it easier to screen out death-penalty opponents from capital juries and reopen the door for accomplices — not just murderers — to face death sentences. But what he omits is the fact that these and other disputed cases were rooted in the underlying failure of the original architecture. Guided discretion is a concept at war with itself: it tries to open the process of handing out death sentences to the light of human judgment, while at the same time fencing it off from the taint of human passion and individual differences.

Simply put, the death penalty seeks to separate the very worst of the worst for ultimate punishment. But it fails to appreciate that individual prosecutors, judges and juries will have their own ideas about who is "worst." In his essay, Stevens suggests that the impulse of the troika's work was to greatly limit and rationalize the use of the death penalty, guiding lower courts away from arbitrary, excessive or racially discriminatory conclusions, but it didn't work that way. Within a few years of their decision, America's death rows were twice as populous as they had been before Furman. Today a single death row — California's — houses more condemned prisoners than lived in all the prisons in the U.S. combined when the death penalty was struck down. And what is the chance of being executed in the Golden State today? About the same as being struck by lightning.

Guided discretion was an idea or theory that looked pretty on paper but could not survive contact with the real world. One man's "worst" was another's "not quite so bad." A short time after the Stevens-approved architecture was in place, judges across the country were arguing in opinions over issues like whether it was worse to be shot at close range, with the gun cold against your head, or at longer range, with the attendant chance of maiming or slow death. Worse to have your throat cut, or to be stabbed multiple times in the chest? Worse to die at the hands of a stranger, or those of a loved one? Multiply such riddles by several thousand and you can begin to understand why the death-penalty machine in the U.S. rarely comes to finality.

I once interviewed, at great length, the man whose job for many years was to prosecute capital appeals for the state of Florida. Ray Marky spent the best part of his career trying to make sense of the system Stevens helped create, hoping to arrive at a point where courts could reliably and consistently determine who should die. And after 15 years of trying, he concluded, "If we had deliberately set out to create a chaotic system, we couldn't have come up with anything worse. It's a merry-go-round, it's ridiculous; it's so clogged up, only an arbitrary few ever get it." He had helped to write Florida's guided-discretion law, and yet after living with the reality of it, he told me, "If they abolished it tomorrow, I'd go get drunk in celebration."

Marky reached that conclusion before most of the cases which Stevens now scapegoats had ever been decided. Stevens blames changes in the composition of the court for problems that were present at the creation. Liberal or conservative or middle of the road, every death-penalty decision since 1976 has basically boiled down to an effort to patch flaws or correct ambiguities in the original design.

Perhaps it seems harsh to blame Stevens. After all, who could have foreseen the mess ahead? But in fact, the mess was foretold in law professor Charles Black Jr.'s 1974 masterpiece, "Capital Punishment: The Inevitability of Caprice and Mistake," and again in the briefs that Stevens read from the great anti-death-penalty lawyer Anthony Amsterdam. That Stevens failed to see the wisdom of those warnings at the beginning of his distinguished Supreme Court career is no reason to pretend, at the end of that career, that he was right and they were wrong.

No, the more candid approach would be to echo another in the growing line of modern Justices who have come to regret their efforts to shore up capital punishment. Harry Blackmun, near the end of his career, announced in Callins v. Collins, "It seems that the decision whether a human being should live or die is so inherently subjective, rife with all of life's understandings, experiences, prejudices and passions, that it inevitably defies the rationality and consistency required by the Constitution."

Blackmun, who voted to uphold the death penalty both in 1972 and 1976, added, "I no longer shall tinker with the machinery of death." That is, the machinery John Paul Stevens helped design.

TIME editor-at-large David Von Drehle is the author of Among the Lowest of the Dead: The Culture of Capital Punishment.