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John Frankenstein Stevens and the Death Penalty

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Thumbnail image for Frankenstein.jpgAmong the many news stories on Justice Stevens' retirement is this one by Adam Liptak in the NYT. Liptak writes, "He [Stevens] grew disillusioned with the death penalty over the years, announcing in 2008 his conclusion that the death penalty violates the Eighth Amendment."

There is more than a little irony in that. If there is one person in this country who bears greater responsibility than any other for the present state of capital punishment law, it is John Paul Stevens. But Dr. Frankenstein is disillusioned with his monster.

In the 1972 case of Furman v. Georgia, the Supreme Court threw out the then-existing death penalty laws, not because the penalty itself was unconstitutional but because the unstructured approach lent itself to arbitrariness and probably racial discrimination. See Justice Thomas's concurring opinion in Graham v. Collins for the details.

The Court was probably surprised at how many states swiftly reenacted statutes to conform to what they believed Furman had required. (They had to guess, as the individual opinions in Furman didn't add up to an intelligible rule of law.) The number was large enough to send the message that any decision actually abolishing capital punishment completely would be swiftly abrogated by constitutional amendment.

So which of the new statutes fixed the problem in Furman? Justice White, a member of the Furman majority, had it right: all of them. Three other Justices agreed. Both the mandatory statutes and the guided discretion statutes resolved the issues that were the basis of Furman's constitutional problem. See Roberts v. Louisiana (dissent). While discretion may be enlightened policy, it is not constitutionally required, a rather obvious conclusion in light of the fact that mandatory sentencing was the general rule at the time the Bill of Rights was enacted, and the policy choices between mandatory and discretionary in noncapital sentencing have gone back and forth over history (and have continued to go back and forth since then).  But a slim majority said no. Mandatory statutes were constitutionally forbidden despite Furman's strong implication that they were constitutionally required. They didn't even apologize for the Court's massive institutional failure to make the law clear. The deciding vote was the junior Justice, John Paul Stevens.

In the years since, the discretionary element metastasized like a cancer. Rules enacted by states in good faith attempts to meet Furman's requirement of channeling the sentencer's discretion were struck down in the name of the ever-expanding requirement to considering anything and everything the defendant throws against the wall, with Justice Stevens casting the deciding vote. See, e.g., Penry v. Lynaugh.

The course of justice would have been very different if Justice Stevens had only recognized that Justice White had it right. The micromanagement of capital sentencing procedure, the "annually improvised" jurisprudence, the thousands of reversals of cases that were tried correctly under the rules in effect at the time of the trial, the long delays and huge backlogs -- the bulk of that would not have happened.

Well, that is water under the bridge now. Best wishes for a peaceful and happy retirement, Dr. Frankenstein. Or is it Frahnkenschteen?

1 Comment

I recall what The Brethren by Woodward and Armstrong said about Stevens when he first came to the court.

Potter Stewart's nickname for Stevens was "wild card", but White called him "one eyed Jack." Stevens' votes in conference were so eccentric and erratic that White often described the conference results as "5-3-1" or "6-2-1".

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