Early in his tenure on the court, now-retired Supreme Court Justice John Paul Stevens co-authored the 1976 ruling that lifted a four-year federal moratorium on the death penalty. Three decades later, in a 2008 opinion issued in concurrence with the majority in Baze et al. v. Rees against the plaintiffs challenging the constitutionality of Kentucky’s method of lethal injection, Justice Stevens declared his belief that the constitutionality of the death penalty itself needed to be reconsidered:
“In Gregg v. Georgia, 428 U. S. 153 (1976), we explained that unless a criminal sanction serves a legitimate penological function, it constitutes ‘gratuitous infliction of suffering’ in violation of the Eighth Amendment. We then identified three societal purposes for death as a sanction: incapacitation, deterrence, and retribution. See id., at 183, and n. 28 (joint opinion of Stewart, Powell, and Stevens, JJ.). In the past three decades, however, each of these rationales has been called into question.”
His opinion went on to detail his rejection of each of those rationales, and made clear that as he saw it the death penalty could no longer be judged constitutional.
The evolution of his thinking has been something of a curiosity for court-watchers since then. Justice Stevens, who stepped down from the court earlier this year, finally provided some answers this week. In a New York Review of Books article on David Garland’s Peculiar Institution, which we published earlier this fall, Justice Stevens lays out the case-by-case chronology of his shifting position on the death penalty. In what signals a refreshingly candid approach to life after the bench, the Justice was explicit in explaining how personnel changes on the court have led to the erosion of the various protections that had kept the death penalty in check.
In something of a coordinated coming-out on the topic, Justice Stevens was also profiled on this Sunday’s 60 Minutes. In an “extra” segment, which did not air live but is available online, the Justice addressed capital punishment, explaining his belief that “we would all be better off if we simply changed course and did away with the death penalty.” (You can see it here.)
The review of Garland’s Peculiar Institution was perhaps the perfect vehicle for Justice Stevens to voice his views on the death penalty precisely because of what Garland leaves unsaid. Indeed, as he explained in a piece for the HUP blog in September, his book is neither “for” nor “against” the death penalty. Rather, it is an analysis of the social functions being served by American capital punishment in an age when every other Western nation has abolished the practice.
As Justice Stevens states in his review, Garland’s book, though ostensibly “amoral,” offers a “powerful argument that will persuade many readers that the death penalty is unwise and unjustified.” Peculiar Institution is more analytically detached than polemic, and Justice Stevens even suggests a similarity to Alexis de Tocqueville’s objective writing about nineteenth-century America. Nonetheless, compelling individuals to actually consider their opinion on the death penalty was certainly one of Garland’s goals in writing the book. He explained that motivation in a podcast produced by the NYU Law School:
“The attempt to engage a larger audience seemed to me like an appropriate one given this particular topic. The death penalty is one of these issues about which everyone has an opinion. In fact, it’s more or less a requirement of every sentient citizen walking around the streets that they should know where they stand on the death penalty. However, very few people are really informed about it. And these opinions are, I think, reached rather superficially quite often on the basis of what cluster of cultural values does one adhere to or what’s one’s political identity, left or right, liberal or conservative. What I wanted to do was to engage the public, to the extent that I can, in thinking about this differently. Thinking about this in terms of the historical comparisons, how other nations do this, but also in our own history, how it is that the American nation came to have the death penalty it currently does.”
You can hear the rest of that interview here. Towards the end of the interview, Garland expresses his hope that Peculiar Institution can help to further the discussion of the death penalty in the United States. Given the book’s role in Justice Stevens’ comments this week, Garland certainly seems to have succeeded there.