Justice Stevens speaks against the death penalty

Justice John Paul Stevens has been in the news a couple of times lately speaking against the death penalty. That's kind of interesting since he was one of the Supreme Court justices (now retired) who voted to reinstate the death penalty in 1976. Apparently he now regrets that position. He recently wrote an essay that argued the way it is applied fails to meet the Supreme Court’s own standards for execution and persists only because of misguided political and cultural reasons.

I read that he wrote this essay as a review of a book “Peculiar Institution: America’s Death Penalty in an Age of Abolition,” by David Garland, a professor of law and sociology at New York University. An NYT article said,  "The book compares American and European approaches to the death penalty, and Justice Stevens appears to accept its major conclusions. Professor Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death."  Justice Stevens wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.

It has long been apparent to me that the "American enthusiasm for capital punishment" - which is alive and well - was very much at odds with the ideals of a civilized society. In 2004 four nations - China, Iran, Vietnam, and the US - accounted for 97 percent of all global executions. Obviously, keeping that sort of company should make us wonder at the correctness of our actions.

In 1976 the Court said that the death penalty was okay if it "served the purpose of incapacitation, deterrence or retribution". None of those justifications hold water. The first two are worthy goals. The last one is unworthy of any society that calls itself civilized. Incapacitation is easily achieved with life imprisonment. Some may be tempted to point out that killers do escape from prison. Yes, but we do have prisons that people don't escape from. I think the deterrence claim has been pretty well discredited by the majority of those who do the studies. If a killer was thinking clearly enough to weigh prison against death they probably wouldn't kill. Retribution or revenge has no place in a deliberative body charged with the government and protection of a civilized society. I have always maintained that the sort of irrational passions that could lead one to take a life was understandable - if not excusable - in an individual. There is absolutely no justification for irrationality or passions in the courtroom. And inevitably, given the fallibility of humans, we will execute someone who didn't commit the crime they face execution for. In fact, it has likely already happened. There have been over a hundred people exonerated and released from death row since the availability of reliable DNA testing. How many thousands died without the option to have DNA testing done? The near certainity of sooner or later executing someone innocent should be enough to forever proscribe such an irrevocable punishment. Incidentally, I've read that some states have a system whereby volunteer executioners flip the switch or press the button that extinguishes the life of someone who had never harmed the executioner personally. Then that volunteer executioner presumably goes home to sit down and have dinner with his family. I've always thought that sort of person had to have crawled out from under a rock and should be considered to have fairly severe psychological problems.

I feel pretty sure that in the not too distant future we will look back and suffer pangs of conscience over this era of judicially sanctioned revenge. Another chapter in the long, bloody history of humankind.