Three Supreme Court Justices Later Regretted Supporting the Death Penalty

October 8, 2010

Three out of the seven Supreme Court justices who voted to reinstate the death penalty in 1976 have since said they regretted those votes and, if given a do over, would have supported abolition of the death penalty.

That means there would have been 5 votes to retain the 1970s era ban on capital punishment, and the USA could have become one of the world leaders in the global movement towards abolition, rather than one of its primary obstacles.  And 1,229 men and women would not have been killed by US states.

“I would vote the other way in any capital case. … I have come to think that capital punishment should be abolished.” –Supreme Court Justice Lewis Powell, to his biographer in 1991.

“From this day forward, I no longer shall tinker with the machinery of death … the basic question – does the system accurately and consistently determine which defendants ‘deserve’ to die? – cannot be answered in the affirmative.” – Supreme Court Justice Harry Blackmun, in a dissent in Callins v. Collins (1994)

“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 … such negligible returns to the State is patently excessive and cruel” – Supreme Court Justice John Paul Stevens in a concurrence in Baze v. Rees (2008)

“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.” – Justice Stevens to NPR this Monday

Sunday, October 10, is World Day Against the Death Penalty.  This year, the focus is on the USA, and Amnesty International has just released a short document surveying where the USA is on this issue, and what these Supreme Court Justices and the rest of us have learned.

Executions and death sentences are down significantly from their high points at the end of the last century. Enthusiasm for executions has waned in the USA because we have learned how the system does (or more often does not) work.  Simply put, the death penalty has not provided the promised benefits, and it comes at a great cost.  It costs in treasure, it takes an emotional toll on victims and prisoners families, and it diminishes faith in our criminal justice system, as evidence of wrongful convictions, racial and economic bias, and other mistakes and errors continues to mount.

Paul E. Pfeifer, a state Supreme Court judge in Ohio which currently executes at the rate of a prisoner a month, recently expressed dismay at the way capital punishment has been implemented in his state.  He told the Columbus Dispatch:

“The number of people we have accumulated on Death Row has been rather staggering. … When the next governor is sworn in I think the state would be well served if a blue-ribbon panel was appointed to look at all those cases.”

This judge, as a state Senator, helped write  the law reinstating Ohio’s death penalty, but, like Justice Stevens, “did not foresee” what was to come.

The same goes for the American Law Institute which for decades has developed model legal codes for the states to use.  Last year, they too turned their back on capital punishment stating:

“The Institute withdraws Section 210.6 [the death penalty section] of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”   And “Section 210.6 was an untested innovation in 1962. We now have decades of experience with death-penalty systems modeled on it … on the whole the section has not withstood the tests of time and experience.”

And of course New Mexico’s former Governor Bill Richardson, who had been a “firm believer in the death penalty” his whole life, famously signed that state’s abolition bill into law last year, because of what he had learned.  He stated:

“I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong. But the reality is the system is not perfect – far from it.”

Over three decades of experience with the death penalty has led to a growing awareness that it is not necessary and it doesn’t work.  Our juries, some of our most prominent judges, and a few of our Governors have begun to accept that our experiment with capital punishment has failed.   On this World Day, the recommendation that concludes the Amnesty report should be heeded by all:

“Officials around the country should seize the opportunity presented by the general decline in death sentences and executions, and any growing recognition within the population at large of the futility of this punishment, to lead the USA away from the death penalty once and for all.”