The verdict on legal lynching

December 9, 2010

Marlene Martin, national director of the Campaign to End the Death Penalty, looks at the arguments made against capital punishment by a former Supreme Court justice.

JOHN PAUL STEVENS, who retired from the U.S. Supreme Court earlier this year, has caused a stir with his declaration that he no longer supports the death penalty system he helped to restart more than three decades ago.

In 1976, when Stevens was the newest justice on the court, he voted with a 7-2 majority to overturn a brief national moratorium on executions put in place four years earlier.

The Supreme Court's decision in Furman v. Georgia in 1972 had declared executions to be cruel and unusual punishment because their use was so "capricious." But with the Gregg v. Georgia decision four years later, a majority of justices, Stevens now among them, ruled that new standards put in place by the states would allow executions to be carried out in an "evenhanded, rational and consistent" way for the most egregious crimes.

What were the new standards put in place? Death penalty trials were split into two phases, with one to decide guilt or innocence and a second to determine punishment--this was in order to prevent defendants from getting the death penalty automatically if found guilty. The new death penalty procedures approved by the Supreme Court also allowed an automatic appeal by a higher court--a mechanism meant to allow for correction of procedural errors.

The lethal injection chamber in Terre Haute, Indiana
The lethal injection chamber in Terre Haute, Indiana

Needless to say, however, the death penalty system could hardly be called "evenhanded, rational and consistent" over the ensuing 35 years. More than 1,200 people have been put to death in that time, and 80 percent of those executions take place in the South. Whites are almost never given the death penalty for taking the life of a Black person, while the opposite case--a Black person accused of killing a white person--remains overrepresented on death row. And white or Black, very few of the more than 3,200-plus plus people on death row could afford their own lawyers.

Then there are the cases where it is all but certain that an innocent person was put to death: Cameron Todd Willingham, Shaka Sankofa, Girvies Davis, Frances Newton, Jesse Tafero and Claude Jones to name just a few. The number of confirmed innocent people exonerated and saved from the death penalty since reinstatement is now 138--or about one for every nine people killed in the modern era of the death penalty.

That's hardly a track record of fairness, and so it must be said that Stevens' conversion to opposing the death penalty comes a little late. But it seems to be a trait among Supreme Court justices to wait until they're retired or nearly retired to declare their regret for having supported the death penalty--Lewis Powell and Harry Blackmun are two others in the same boat.

STEVENS CHANGED his position executions in 2008, declaring in one decision that state-sponsored killing was "becoming more and more anachronistic." Disturbingly, he did so while voting with the Supreme Court majority to uphold Kentucky's lethal injection method, which led to the lifting of the moratorium in that state.

Now, though, Stevens has explained the reasoning for his turnaround. His interview with the CBS news program 60 Minutes gained the most attention, but he discussed the question more thoroughly in an article for the New York Review of Books that reviews a book by David Garland titled Peculiar Institution: America's Death Penalty in an Age of Abolition.

In the review, Stevens describes what he believes are several "wrong turns" in Supreme Court decisions on key issues regarding application of the death penalty. He objects, for example, to a ruling reaffirmed most recently three years ago in Uttecht v. Brown that allows prospective jurors to be disqualified based on their opposition to the death penalty--as a result, juries in capital cases are skewed toward death.

Other criticisms made by Stevens include the fact that victim impact statements are allowed in death penalty trials, the expansion of the death penalty to felony crimes other than murder--and what Stevens calls "race-based prosecutorial decisions."

On the question of racism, Stevens discusses the death penalty in strong terms that one doesn't typically associate with a Supreme Court justice.

For example, he compares the use of the death penalty today to lynchings of the past: "That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings."

Stevens also focuses on the Supreme Court's abysmal decision in the 1987 case McCleskey v. Kemp, where the justices heard compelling arguments demonstrating how racism infected the whole system--but a majority voted to defend the death penalty from the challenge.

As Stevens explains, "The case involved a study by Iowa law professor David Baldus and his colleagues demonstrating that in Georgia, murderers of white victims were 11 times more likely to be sentenced to death than were murderers of Black victims."

In its eventual decision upholding the death penalty system, the court majority was forced to acknowledge "a discrepancy that appears to correlate with race," but it went on to say that this was "an inevitable part of our criminal justice system," so there was no reason to overturn McCleskey's conviction. Could the justices have been any more blatant in legitimizing racism in our criminal justice system?

It is astonishing to read the majority opinion, authored by Justice Lewis Powell Jr., who wrote, "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system... [I]f we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty."

Justice William Brennan was correct when he called Powell's reasoning "fear of too much justice." Powell himself admitted to his biographer that his biggest regret of any Supreme Court decision was his vote in McCleskey.

The injustices in this case go beyond even the Supreme Court's callous attitude toward racism--Warren McCleskey proclaimed his innocence until his execution in 1991. McCleskey was charged with killing a police officer, but the only evidence against him was from a fellow prisoner.

According to the Justice Denied Web site, "Later, it was discovered that the prisoner was a planted informant promised leniency in return for his cooperation. The state deliberately concealed this evidence and continually lied about the concealment for years. The U.S. Supreme Court ruled that despite the state's successful cover-up, defense attorneys should have known they were being lied to and couldn't later raise the issue."

THE McCLESKEY decision is one in a long series that show the criminal justice system is wrought with racism and shrouded in the lie of "equal justice for all."

To have this fact underlined by a former Supreme Court justice like Stevens is positive for the movement struggling to end capital punishment. But Stevens' own journey to the conclusion that the death penalty represents "the pointless and needless extinction of life" shows the importance of factors outside the legal system that have successfully eroded public confidence that the death penalty system is fair.

For his part, Stevens continues to view the decisions of the Supreme Court as purely based on legal reasoning--a matter of the justices "just trying to interpret the Constitution."

But over many years, you can find Supreme Court decisions both for and against slavery, for and against civil rights for African Americans, for and against the death penalty. The reason that "just interpreting the Constitution" can yield different results at different times has to do with the social climate, and whether people outside the courtrooms are mobilized in the struggle for greater rights and freedoms.

Despite their claims to the contrary, the justices of the Supreme Court are most definitely affected by activity outside the legal system. Don't let the black robes fool you.

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