"Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time." These were the eloquent words of retiring Justice John Paul Stevens in Graham v. Florida, in which the Supreme Court this term decided that the punishment of life without parole for minors who did not kill is cruel and unusual punishment. But Justice Stevens' words apply with equal force to his approach to the death penalty during his nearly 35-year tenure on the Court, which regrettably ends today.
The ACLU has long opposed capital punishment. By contrast, in 1976, Justice Stevens voted to uphold the capital statutes passed in response to the Supreme Court's 1972 decision in Furman v. Georgia. However, since then, he has repeatedly sought to eliminate unfairness in the application of the death penalty and to ensure that it was inflicted on only "the worst of the worst."
Justice Stevens wrote the court's opinion barring the death penalty for mentally retarded people as cruel and unusual punishment (link to Atkins v. Virginia). He joined the majority in several similar rulings, finding execution to be cruel and unusual punishment for adult rape, for participants in felonies resulting in death who did not themselves kill, intend to kill or intend that a killing take place, for juveniles who kill, and for the rape of a child.
Gradually, Justice Stevens began to have doubts about the fairness of capital punishment. As the Court retreated from its promise that the death penalty would be applied rationally, reliably and consistently or not at all, Justice Stevens became an eloquent voice in dissent.
In McCleskey v. Kemp, Justice Stevens dissented from the court's holding that a capital defendant could not show his death sentence was the result of racial bias by presenting a detailed statistical study revealing racial discrimination in the use of the death penalty. In Walker v. Georgia (PDF), he dissented when the court refused to take up a case showing that the Georgia Supreme Court had stopped conducting the meaningful appellate review of death sentences it had promised when the Supreme Court had upheld Georgia capital procedures. In Uttecht v. Brown, a case in which the ACLU filed an amicus brief, Justice Stevens dissented when the court ruled that states could exclude from capital juries prospective jurors who "harbor[ed] some slight reservation in imposing the most severe of sanctions."
Two years ago, in his concurring opinion in Baze v. Rees , in which the Court approved of Kentucky's lethal injection procedure, Justice Stevens explained the knowledge that he had accumulated during 34 years that had passed since he voted to uphold the post-Furman death penalty statutes in 1976. He said that he had learned that the death penalty could not be applied without violating the Eighth Amendment's bar on cruel and unusual punishment. He cited the failed promises noted above and a dawning factual development — the unacceptable risk that a state would execute an innocent person. In 1976, the court had assumed the reliability of our modern criminal justice system. In Baze, Justice Stevens cited the growing number of exonerations of death row inmates (a list that includes ACLU client Levon Bo Jones, and declared that "the real risk of error in this class of cases" made "the irrevocable nature of the consequences . . . of [execution of] decisive importance."
In the past two years, Justice Stevens has continued to grapple with death penalty cases by attempting to reach fair and legally-principled results on the crumbling terrain of the court's capital jurisprudence. When the court rises for its summer recess, it will lose an eloquent champion of fairness, integrity, and the rule of law. It will also lose a rare jurist who was not afraid to admit when the court had made a huge mistake — such as its affirmance of the constitutionality of capital punishment.