On Wednesday, retiring Supreme Court Justice John Paul Stevens gave an interview at the annual conference of the 5th Judicial Circuit in Chicago, and explained his changed view on the death penalty.
In 1976, Justice Stevens was among the majority opinion in Gregg v. Georgia, the Supreme Court decision that found the death penalty does not violate the Eighth or 14th Amendments, thereby reinstating it. But at Wednesday’s event, he explained his change of heart.
[Justice Stevens] said when he voted to reinstate capital punishment — in his first year on the court — he thought it would become increasingly harder to impose the sentence. Instead, “the jurisprudence has worked in exactly the opposite direction,” and he thinks that because “our system malfunctions every now and then,” the risk is too high that an innocent person might be put to death.
The risk of an incorrect decision has increased,” he told an audience of hundreds of lawyers and judges at a judicial conference here, responding to a question about his 2008 assertion that the death penalty should be abolished. He said that because of advances in DNA testing, which have led to the freeing of some innocent convicts, “we’re more aware of the risk than we might have been before.
Two years ago, while Justice Stevens voted with the majority allowing Kentucky’s lethal injection protocol to stand in Baze v. Rees, he wrote:
Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses. The risk of executing innocent defendants can be entirely eliminated by treating any penalty more severe than life imprisonment without the possibility of parole as constitutionally excessive.
That “unacceptable number” that Justice Stevens refers to is 138: the number of men who have been exonerated from death row. What more evidence is needed that execution is indeed cruel and unusual punishment?