Too Little, Too Late? Justice John Paul Stevens Takes Aim at the Death Penalty

In his 2011 memoir Five Chiefs, retired Supreme Court
Justice John Paul Stevens said he was wrong to repeatedly vote in
favor of the death penalty during his lengthy legal career. “I
should have voted differently” in one such case from Texas, Stevens
wrote. “I regret that vote because experience has shown that the
Texas statute played an important role in authorizing so many death
sentences in that state.”

Stevens has now written a new book, Six Amendments: How and
Why We Should Change the Constitution, and as Andrew Cohen

observes at The Atlantic, the retired justice has
doubled down on his opposition to the death penalty. For example,
here is one of Stevens’ proposed tweaks to the text of the
Constitution:

Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments such as the death
penalty inflicted.

Cohen admires
Stevens’ aggressive new opposition to capital punishment but is
more than a little annoyed about how long it took him to change his
mind. “It’s never too late for redemption, I suppose (unless you
are one of those innocent men executed in America since capital
punishment returned in its modern form in 1976),” Cohen quips.
Perhaps Stevens’ days as a
darling of the left are finally numbered.

But there’s one more big issue lurking under the surface here:
respect for legal precedent. In the 2008 case Baze v.
Rees, the Supreme Court ruled that Kentucky’s use of
lethal injection did not qualify as “cruel and unusual” under the
Eighth Amendment. Justice Stevens joined in that outcome, but also
filed a separate concurrence where he said the death penalty was
unconstitutional in all forms. How did he reconcile those clashing
positions? “This Court has held that the death penalty is
constitutional,” Stevens wrote, “and has established a framework
for evaluating the constitutionality of particular methods of
execution. Under those precedents…I am persuaded that the
evidence adduced by petitioners fails to prove that Kentucky’s
lethal injection protocol violates the Eight Amendment.” Put
differently, Stevens did not like those precedents, but he believed
he was bound to follow them.

Was he right to do so? Or should Stevens have come out squarely
against the death penalty, precedent be damned?

Setting aside the particulars of the death penalty debate, my
own view is that the Supreme Court should be paying more attention
to the text and history of the Constitution and less attention to
its own precedents. Unfortunately, that view has yet to command a
lasting majority on the Supreme Court.