During this period, former US Supreme Court Justice John Paul Stevens has been among those who have demonstrated a personal learning curve in relation to the death penalty. In 2008, he revealed that he had decided, after more than three decades on the country’s highest court, that the death penalty was a cruel waste of time. “I have relied on my own experience”, wrote Justice Stevens, “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 punishment with “such negligible returns to the State is patently excessive and cruel”, he added.4
Since retiring from the Supreme Court in June 2010, he has added to this opinion. In a recent interview with National Public Radio, the former Justice said that there was one vote during his nearly 35 years on the Court that he regretted – his vote with the majority in Gregg v. Georgia: “I think there is one vote that I would change and that’s one – was upholding the capital punishment statute. I think that we did not foresee how it would be interpreted. I think that was an incorrect decision”.5
Former Justice Stevens is not the first judge in the USA to have turned against the death penalty during his or her time on the bench, or indeed the only member of the US Supreme Court to do so. On 22 February 1994, nearly two decades after he had voted with Justice Stevens in the Gregg v. Georgia ruling, Justice Harry Blackmun announced that he would no longer “tinker with the machinery of death”. The USA’s experiment with the death penalty had failed, he wrote, and “the basic question – does the system accurately and consistently determine which defendants ‘deserve’ to die? – cannot be answered in the affirmative”.6 Justice Lewis Powell, another who had voted for the Greggruling, after his retirement said that he had “come to think that capital punishment should be abolished”.7Given that the Greggruling was passed by seven votes to two, if Justices Blackmun, Powell and Stevens had voted in 1976 how they later suggested they would have voted had they known how the USA’s experiment with the death penalty would turn out, judicial killing would not have been resumed in 1977, if at all.