Thirty Years after Lifting the Moratorium on Capital Punishment, Changes of Heart in the Legal Institution

By Zannie Carlson

The New York Times just ran a piece about Supreme Court Justice Stevens’ reassessment of his stance on the death penalty, more than thirty years after he promoted and helped reintroduce the policy. Stevens writes about his observations and revelations in a review for a new book on capital punishment called Peculiar Institution: America’s Death Penalty in an Age of Abolition. Early in his career as a Supreme Court Justice, Stevens advocated for the death penalty by voting to lift a moratorium on the practice with the expectation that the punishment could be used wisely, and with utmost care in deliberation. More than thirty years later, Stevens explains his major concerns with the death penalty today stem from trigger-happy judges, political alliances on the bench, and the court’s refusal to recognize and rectify race-based sentencing. Death penalty sentencing became not about the accused, nor even the injured, but the judges themselves. All of the concerns that Stevens cited as limitations of his support of the policy became the standard, as rationality gave way to personalities and prejudices.

The New York Times adds that Stevens first expressed his opinion that the death penalty was unconstitutional in a concurrence in 2008, which leads us to wonder, how long has Stevens doubted his initial judgment on the death penalty? Has political pressure on the bench influenced Stevens to be compliant on the issue? If so, what made him come forward now? We already know that Stephens’ 1976 endorsement and partial orchestration of capital punishment policy leaves him partially accountable for the execution of more than 1,00 people during his term, but without the robe and gavel, how influential will Stevens be in these last years of his life? Combination skeptic-idealist that I am, I still believe his influence will enhance his activism and serve as an important vehicle in moving discourse on the issue forward. Stevens’ review will be published in The New York Review of Books, on Dec. 23.

After reaching a peak 98 executions in 1999 since the moratorium was lifted, the death penalty in general has been in decline; executions this year will amount to about half that number. Like Justice Stevens, the American Law Institute, the highly influential organization of lawyers, judges, and academics responsible for compiling and formulating general rules of law, including use of capital punishment in its 1962 Model Penal Code, withdrew its support of the death penalty system in 2009. The group similarly felt that its efforts to “make the death penalty less arbitrary” were often undermined by conflicting instructions in the courtroom. The A.L.I. ultimately found that the risks of executing innocent individuals, the likelihood of race leading court decisions, and correlation between inadequate or incompetent representation and poverty precluded the possibility of fair implementation of capital punishment.

Interestingly, the public does not share Stevens’ and the A.L.I.’s opinions on the death penalty, as a 2010 survey shows 64% of polled Americans in favor of the execution of individuals convicted of murder. While the public may be hard on crime, U.S. execution statistics indicate a cyclical pattern. With the A.L.I against the death penalty, courts lose a strong ally, and although it is too soon to say, courts may express a greater reluctance to sentence individuals to death. Despite popular opinion, the downward trend of executions in America may continue to fall in the coming years.