John Paul Stevens: On the Death Sentence
[John Paul Stevens served as an Associate Supreme Court Justice from 1975 to 2010.]
David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences....
Parallel developments occurred in the United States prior to President Nixon’s election. “America in the 1960s stood on the verge of abolishing capital punishment, as did Britain, Ireland, Canada, Australia, New Zealand, and most of continental Europe.” The Warren Court was still “operating as an engine of liberal reform”; in 1964 Lyndon Johnson won a landslide victory; in 1965 Congress enacted the Voting Rights Act, dramatically changing electoral practices in the South; and in 1966 a Gallup poll found that most Americans opposed the death penalty. Prominent elected officials took abolitionist positions without apparent political cost.
In 1963 Justice Arthur Goldberg published a dissent from the Supreme Court’s refusal to review Rudolph v. Alabama, in which the defendant was sentenced to death for rape. Consistently with his treatment of most debates about capital punishment as having an all-or-nothing character, Garland reads that dissent as having signaled to the civil rights community that constitutional challenges to the death penalty would find judicial support. In fact, Justice Goldberg’s published opinion merely identified the narrower question of whether death is a permissible punishment for rape—a question resolved negatively in Coker v. Georgia (1977).
In 1972, in Furman v. Georgia, the Court effectively invalidated all forty-one existing state and District of Columbia capital punishment statutes. Rather than advancing Justice Goldberg’s purported campaign, Furman, in Garland’s view, was a failure: a temporary moratorium on executions that energized and motivated a powerful pro–death penalty movement. But that analysis presumes that the Court should have been or sought to be an “engine of reform.” That is quite wrong. The Court has no agenda of its own, but may (and must) only decide issues that litigants raise in cases over which the Court has jurisdiction....
In 1977 in Gardner v. Florida, the Court set aside a death sentence because the trial judge relied on information not disclosed to the defense, a then-permissible practice in noncapital cases. My opinion in that case stated that death is different in kind from other American punishments:
When I wrote those words I was thinking about individual decisions in specific cases. Professor Garland’s book persuades me that my comment is equally applicable to legislative decisions authorizing imposition of death sentences. To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses....
Read entire article at NYRB
David Garland is a well-respected sociologist and legal scholar who taught courses on crime and punishment at the University of Edinburgh before relocating to the United States over a decade ago. His recent Peculiar Institution: America’s Death Penalty in an Age of Abolition is the product of his attempt to learn “why the United States is such an outlier in the severity of its criminal sentencing.” Thus, while the book primarily concerns the death penalty, it also illuminates the broader, dramatic differences between American and Western European prison sentences....
Parallel developments occurred in the United States prior to President Nixon’s election. “America in the 1960s stood on the verge of abolishing capital punishment, as did Britain, Ireland, Canada, Australia, New Zealand, and most of continental Europe.” The Warren Court was still “operating as an engine of liberal reform”; in 1964 Lyndon Johnson won a landslide victory; in 1965 Congress enacted the Voting Rights Act, dramatically changing electoral practices in the South; and in 1966 a Gallup poll found that most Americans opposed the death penalty. Prominent elected officials took abolitionist positions without apparent political cost.
In 1963 Justice Arthur Goldberg published a dissent from the Supreme Court’s refusal to review Rudolph v. Alabama, in which the defendant was sentenced to death for rape. Consistently with his treatment of most debates about capital punishment as having an all-or-nothing character, Garland reads that dissent as having signaled to the civil rights community that constitutional challenges to the death penalty would find judicial support. In fact, Justice Goldberg’s published opinion merely identified the narrower question of whether death is a permissible punishment for rape—a question resolved negatively in Coker v. Georgia (1977).
In 1972, in Furman v. Georgia, the Court effectively invalidated all forty-one existing state and District of Columbia capital punishment statutes. Rather than advancing Justice Goldberg’s purported campaign, Furman, in Garland’s view, was a failure: a temporary moratorium on executions that energized and motivated a powerful pro–death penalty movement. But that analysis presumes that the Court should have been or sought to be an “engine of reform.” That is quite wrong. The Court has no agenda of its own, but may (and must) only decide issues that litigants raise in cases over which the Court has jurisdiction....
In 1977 in Gardner v. Florida, the Court set aside a death sentence because the trial judge relied on information not disclosed to the defense, a then-permissible practice in noncapital cases. My opinion in that case stated that death is different in kind from other American punishments:
From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice and emotion.
When I wrote those words I was thinking about individual decisions in specific cases. Professor Garland’s book persuades me that my comment is equally applicable to legislative decisions authorizing imposition of death sentences. To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses....