Justice Stevens Renounces Capital Punishment
By Linda Greenhouse
New York Times
April 18, 2008
WASHINGTON - When Justice John Paul Stevens intervened
in a Supreme Court argument on Wednesday to score a few
points off the lawyer who was defending the death
penalty for the rape of a child, the courtroom audience
saw a master strategist at work, fully in command of the
flow of the argument and the smallest details of the
case. For those accustomed to watching Justice Stevens,
it was a familiar sight.
But there was something different that no one in the
room knew except the eight other justices. In the
decision issued 30 minutes earlier in which the court
found Kentucky 's method of execution by lethal injection
constitutional, John Paul Stevens, in the 33rd year of
his Supreme Court tenure and four days shy of his 88th
birthday, had just renounced the death penalty.
In an opinion concurring with the majority's judgment,
Justice Stevens said he felt bound to "respect
precedents that remain a part of our law." But outside
the confines of the Kentucky case, he said, the time had
come to reconsider "the justification for the death
He wrote that court decisions and actions taken by
states to justify the death penalty were "the product of
habit and inattention rather than an acceptable
deliberative process" to weigh the costs and risks of
the penalty against its benefits.
His opinion, which was not separately announced in the
courtroom, was the culmination of a remarkable journey
for a Republican antitrust lawyer.
During his tenure, Justice Stevens, originally an
opponent of affirmative action, has changed his views on
that and other issues. "Learning on the job is essential
to the process of judging," he observed in a speech in 2005.
But it is on the death penalty that his evolution is
most apparent. He was named to the Supreme Court by
President Gerald R. Ford at a time when ferment over
capital punishment was at a peak. Less than four years
earlier, the court had invalidated every death penalty
statute in the country, and states were racing to draft
laws that would test the court's tolerance for a fresh start.
In July 1976, little more than six months after taking
his seat, Justice Stevens announced the opinion for the
court in Jurek v. Texas , one of the three cases by which
the justices gave their approval to a new generation of
death penalty statutes. The defendant, Jerry Lane Jurek,
had been convicted of kidnapping a 10-year-old girl from
a public swimming pool and then raping and killing her.
The new justice's opinion described the crime in vivid
detail before concluding that Mr. Jurek's death sentence
was constitutional because " Texas has provided a means
to promote the evenhanded, rational and consistent
imposition of death sentences under law."
During the child rape argument on Wednesday, it was the
lawyer for Louisiana who was giving the vivid
description of the crime, recounting in grisly anatomic
detail the injuries inflicted on an 8-year-old girl by
her stepfather, the convicted rapist challenging the
state's death penalty law. As justices and the courtroom
audience cringed, the air seemed to leave the room,
along with any points the defendant's lawyer had managed
to make in his initial turn at the lectern.
Justice Stevens had remained silent during that first
half of the argument, but now he pounced. "Could you
clarify?" he began, interrupting the state's lawyer,
Juliet L. Clark. "Were those injuries permanent?"
He knew the answer, of course: the record of the case
indicated that the girl's physical injuries had healed
in two weeks. His point was to bring the anatomy lesson
to an end and refocus the argument on the legal issues.
If it was also to throw the state's lawyer off stride,
he succeeded in that as well. Ms. Clark, reluctantly
conceding that the injuries had healed, shifted to her
legal arguments. Justice Stevens's mild expression and
tone never changed.
His renunciation of capital punishment in the lethal
injection case, Baze v. Rees, was likewise low key and
undramatic. While reminiscent of Justice Harry A.
Blackmun's similar step, shortly before his retirement
in 1994, Justice Stevens's opinion lacked the ringing
declaration of Justice Blackmun's "From this day
forward, I no longer shall tinker with the machinery of
death." Justice Stevens's strongest statements were not
in his own voice, but in quotations from a former
colleague, Justice Byron R. White, an early death
But Justice Stevens was not so restrained last June in
an opinion dissenting from a decision that in retrospect
appears to have been, for him, the final straw. In that
case, Uttecht v. Brown, a 5-to-4 majority gave state
courts great leeway in death penalty trials to remove
jurors who express even mild doubt about capital punishment.
"Millions of Americans oppose the death penalty" and yet
can serve as conscientious jurors, Justice Stevens
objected then, adding that the majority "has gotten it
horribly backwards" in enabling prosecutors to weed them out.
In his opinion on Wednesday, Justice Stevens said the
Uttecht decision was "of special concern to me," and
used it to explain his journey from Jurek v. Texas to
Baze v. Rees. Those who voted to uphold the death
penalty in 1976, he said, "relied heavily on our belief
that adequate procedures were in place" to treat death
penalty cases with special care so as to minimize bias and error.
"Ironically, however," he continued, "more recent cases
have endorsed procedures that provide less protections
to capital defendants than to ordinary offenders."
In other words, capital punishment had become for him,
in the court's hands, a promise of fairness unfulfilled.
One of the court's most frequent dissenters throughout
his tenure, Justice Stevens, an optimist at heart, does
not look back on every loss with such a sense of
stinging disappointment. In 1989, he dissented
vigorously from the court's decision in Texas v. Johnson
that flag-burning is a form of expression protected by
the First Amendment. While he still believes he was
right, he told a Chicago audience of lawyers in 2006, he
sees a silver lining: flag-burning has all but disappeared.
"What once was a courageous act of defiant expression,"
he said, "is now perfectly lawful, and therefore is not
worth the effort."
April 23, 2008
By GILBERT KING
THE Supreme Court concluded last week, in a 7-2 ruling, that Kentucky ’s three-drug method of execution by lethal injection does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In his majority opinion, Chief Justice John Roberts cited a Supreme Court principle from a ruling in 1890 that defines cruelty as limited to punishments that “involve torture or a lingering death.”
But the court was wrong in the 19th century, an error that has infected its jurisprudence for more than 100 years. In this nation’s landmark capital punishment cases, the resultant executions were anything but free from torture and prolonged deaths.
The first of those landmark cases, the 1879 case of Wilkerson v. Utah , was cited by Justice Clarence Thomas, in his concurring opinion in the Kentucky case. The court “had no difficulty concluding that death by firing squad” did not amount to cruel and unusual punishment, Justice Thomas wrote.
Wallace Wilkerson might have begged to differ. Once the Supreme Court affirmed Utah ’s right to eradicate him by rifle, Wilkerson was let into a jailyard where he declined to be blindfolded. A sheriff gave the command to fire and Wilkerson braced for the barrage. He moved just enough for the bullets to strike his arm and torso but not his heart.
“My God!” Wilkerson shrieked. “My God! They have missed!” More than 27 minutes passed as Wilkerson bled to death in front of astonished witnesses and a helpless doctor.
Just 11 years later, the Supreme Court heard the case of William Kemmler, who had been sentenced to death by electric chair in New York . The court, in affirming the state’s right to execute Kemmler, ruled that electrocution reduced substantial risks of pain or “a lingering death” when compared to executions by hanging. Kemmler, had he lived through the ensuing execution (and he nearly did), might too have disagreed.
After a thousand volts of current struck Kemmler on Aug. 6, 1890, the smell of burnt flesh permeated the room. He was still breathing. Saliva dripped from his mouth and down his beard as he gasped for air.
Nauseated witnesses and a tearful sheriff fled the room as Kemmler’s coat burst into flames.
Another surge was applied, but minutes passed as the current built to a lethal voltage. Some witnesses thought Kemmler was about to regain consciousness, but eight long minutes later, he was pronounced dead.
Perhaps the most egregious case came to the court more than 50 years later. “Lucky” Willie Francis, as the press called him, was a stuttering 17-year-old from St. Martinville , La. In 1946, he walked away from the electric chair known as “Gruesome Gertie” when two executioners (an inmate and a guard) from the state penitentiary at Angola botched the wiring of the chair.
When the switch was thrown, Francis strained against the straps and began rocking and sliding in the chair, pleading with the sheriff and the executioners to halt the proceedings. “I am n-n-not dying!” he screamed. Gov. Jimmie Davis ordered Francis returned to the chair six days later.
Francis’ lawyers obtained a stay, and the case reached the Supreme Court. Justice Felix Frankfurter defined the teenager’s ordeal as an “innocent misadventure.” In the decision, Louisiana ex rel.
Francis v. Resweber, the court held that “accidents happen for which no man is to blame,” and that such “an accident, with no suggestion of malevolence” did not violate the Constitution.
Fewer than 24 hours before Francis’ second scheduled execution, his lawyers tried to bring the case before the Supreme Court again. They had obtained affidavits from witnesses stating that the two executioners from Angola were, as one of the witnesses put it, “so drunk it would have been impossible for them to have known what they were doing.”
Although the court rejected this last-minute appeal, it noted the “grave nature of the new allegations” and encouraged the lawyers to pursue the matter in state court first, as required by law.
Willie Francis was executed the next morning. Because his case never made it back to the Supreme Court, the ruling lingers, influencing the decisions of today’s justices. In his majority opinion last week, Chief Justice Roberts called Louisiana ’s first attempt at executing Francis an “isolated mishap” that “while regrettable, does not suggest cruelty.”
Justice Clarence Thomas, writing separately, also mentioned the Francis case: “No one suggested that Louisiana was required to implement additional safeguards or alternative procedures in order to reduce the risk of a second malfunction.” In fact, Louisiana did just that. Two weeks after the botched execution of Willie Francis, its Legislature required that the operator of the electric chair “shall be a competent electrician who shall not have been previously convicted of a felony.”
This law would have prohibited both executioners from participating in Francis’ failed execution.
The court’s majority opinion in the Willie Francis case acknowledged, “The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence.” Yet the Supreme Court continues to flout that standard.
In its ruling last week, the court once more ignored the consequences of its rulings for men like Wallace Wilkerson, William Kemmler and Willie Francis. The justices cited and applied Wilkerson’s and Kemmler’s cases as if their executions went off without a hitch.
And 60 years after two drunken executioners disregarded the tortured screams of a teenage boy named Willie Francis, the Supreme Court continues to do so.
Gilbert King is the author of “The Execution of Willie Francis: Race, Murder and the Search for Justice in the American South.”
Copyright 2008 The New York Times Company