The recent passing of former-Supreme Court Justice John Paul Stevens has caused all Americans to pause and reflect on a long life of service to the United States of America. Originally appointed by a Republican president, he was one of the critical thoughtful votes on the court who often dissented from the opinions of his fellow Republican-appointed justices often earning him the label of a left-leaning justice. One of his strongest legacies, and one on which he struggled most throughout his tenure, related to the death penalty – an issue that is often neglected but remains one of the critical moral issues of this era.

Stevens was the third-longest serving Justice in the courts history, serving 35 years, and his tenure was notable for its complexity, and the marked changes that occurred in his thinking across those decades. Nominated by Ford, he chose to step down in 2010 allowing a Democrat, Barrack Obama, to pick his successor. This goes to demonstrate the non-traditional and extra-partisan role he often played in the court and its decisions. He ruled against Bush in Bush v. Gore, and wrote the dissent in the Citizens United case, but most relevant, he completely changed his viewpoint on the crucial issue of capital punishment. He emphatically stated, “[l]earning on the bench has been one of the most important and rewarding aspects of my own experience over the last thirty-five years,” implying a willingness to adapt and understand policies as they changed. He, however, did not recognize changes in his views or standing on some of these very political issues, where Supreme Court decisions are made on the basis of values and subjective interpretation of the written law. Rather, he stated that the court, perhaps the world had changed.

His early views reflect a conception of the appropriateness of punishment being subject to social conventions of the time, and he seemed to have a certain degree of moral aversion to the responsibility of handing out a death sentence. An interviewer in 1979 described him as attempting to, “narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately.” He arrived on the court in 1975, shortly after the 1972 case which had imposed a moratorium on capital punishment on the grounds that it was applied in an unconstitutional manner, but without questioning its intrinsic legality, giving state governments the opportunity to modify their legal codes to comply while still practicing the death penalty. From 1976 to 1984, he repeatedly ruled to constrict the scope of the use and acceptability of capital punishment, while also sometimes ruling against the defendants in capital cases, implying that at the time he initially was not an abolitionist. In his words, his aim was that the court would place its, “emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner.”

It has been asserted the period from 1985 until his voluntary retirement was marked by a reversal in which he questioned and eventually turned against the death penalty.

In a 1987 case in which it was argued that a statistically evident pattern of racial discrimination of the death penalty threatened the equal protection of the accused, while conservative Scalia claimed that the element of racial discrimination would not imply the necessity of reversal, Stevens made himself clear, “if society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder “for whites only”) and no death penalty at all, the choice mandated by the Constitution would be plain.”

His later development appeared to develop into a legal assumption of the value of life over death, with him orally dissenting in a 1991 case, stating, “our cases provide no support whatsoever for the majority’s conclusion that the prosecutor may introduce evidence that sheds no light on the defendant’s guilt or moral culpability, and thus serves no purpose other than to encourage jurors to decide in favor of death, rather than life, on the basis of their emotions, rather than their reason.”

Over the next decade, he likely relied on the notion that the death penalty was constitutionally legitimate though so severe that it should be limited and practiced only in the most procedurally fair and rarest of cases. However, in 2009, he admitted that he no longer felt this way, stating, “I have relied on my own experience in reaching the
conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life
with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns
to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment,” thus finding the death penalty intrinsically unconstitutional.

His own journey mirrors that of society over the last several thousand years from biblically prescribed capital punishment for a litany of offenses to a modern era where a majority of developed states have de facto ended the practice altogether.

This year marks the potential for a similar turn for a deeply conservative and religious state, a country that still has legalized Sharia law in the individual states that allows courts to inflict corporal punishment for moral crimes. The Malaysian government had previously stated that they intended to fully abolish the death penalty. Earlier this year, they then led the country into the chaos of limbo by announcing that they would only reverse “mandatory” death penalties. It is not clear whether this year they will fully abolish or establish a moratorium on its use, and there is an outpouring of both popular support and opposition from this deeply culturally conservative country which views the legal system as a form of religiously condoned retribution forming justice. Meanwhile, neighboring Singapore has seen a massive increase in the number of executions practiced, while  nearly 90% of their applications of the death penalty for drug trafficking, even while the number of drug interdictions continue to increase showing the futility of their policies.

Overall, global rates of capital punishment, including its use in the United States, have been decreasing, with the primary states practicing capital punishment largely relegated to serial human rights abusers, Iran, Iraq, Saudi Arabia, Vietnam, China, and North Korea.

The concept of justice as not revenge, and with renewed focus on not only societal protection, but rehabilitation,  have made much the world rethink the purpose of capital punishment. The arguments regarding the deterrence factor of capital punishment have already been utterly discredited. Add on to this the severe moral and political questions regarding the role and purpose of the state as a killer that have been raised. Therefore, the question for those who aim to consider the morality of capital punishment is, what justification is still left for barbarism?

We thank John Paul Stevens for his service to the United States, the law, and humanity.

Smith, C. E. (2010). Justice John Paul Stevens and Capital Punishment. Berkeley J. Crim. L.15, 205. Accessed: https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1041&context=bjcl

Click to access 08-205.pdf

https://www.aljazeera.com/indepth/features/eye-eye-death-penalty-debate-malaysia-190708105030623.html

https://www.euronews.com/2019/08/01/singapore-says-drug-smuggling-worsens-even-as-hangings-rise

Staff writer: Ari B