Justice Stevens Criticizes Death Penalty at Marshall Dinner

Justice John Paul Stevens issued a stinging criticism of the death penalty in a speech last night to the American Bar Association.

Justice Stevens Criticizes Death Penalty (AP)

Supreme Court Justice John Paul Stevens issued an unusually stinging criticism of capital punishment Saturday evening, telling lawyers that he was disturbed by “serious flaws.” Stevens stopped short of calling for an end to the death penalty, but he said there are many problems in the way it is used. Recent exonerations of death row inmates through scientific evidence are significant, he told the American Bar Association, “not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice.”

Other Supreme Court justices, including Sandra Day O’Connor and Ruth Bader Ginsburg, have also spoken out about concerns that defendants in murder cases are not adequately represented at trial. But Stevens, 85, made a much harsher and sweeping condemnation. He said the jury selection process and the fact that many trial judges are elected also work against accused murderers. He also said that jurors might be improperly swayed by victim-impact statements.


Stevens made his exceptionally frank and surprising comments in Illinois, his home state and a place that has been roiled by controversy over the death penalty. In 2000, wrongful convictions led then-Gov. George Ryan to halt all executions. It also came just a day after a Virginia jury decided against the inmate whose case led to the 2002 ban on executing the mentally retarded. The jury said Daryl Atkins was mentally competent and could be put to death. The judge immediately scheduled a December execution date.

Stevens’ audience included his wife and Cecilia Marshall, widow of Justice Thurgood Marshall. Marshall, the Supreme Court’s first black member before retiring in 1991, was a critic of the death penalty and argued that it was unconstitutional under any circumstances. “Since his retirement, with the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously,” Stevens said during a dinner named for Marshall.

He said Supreme Court cases have revealed that “a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial.”

In addition, Stevens said he had reviewed records that showed “special risks of unfairness” in capital punishment. Juries might not be balanced because people who have qualms about capital punishment can be excluded by prosecutors, he said. And he questioned whether potential jurors are distracted by extensive questions about their views on the death penalty.

In addition, Stevens said a statement from a victim’s family sometimes “serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than their reason.”

Stevens is right that there are some serious disparities in the system. Listening to “Fox News Sunday” a couple minutes ago, they replayed a “Power Player of the Week” segment about a high priced D.C. criminal defense attorney who has not lost a case since 1973. One suspects he has not had the fortune to have nothing but innocent clients during that span of time. Most criminal defendants, however, do not have several million dollars to spend in their defense.

The question, though, in the case of a Supreme Court Justice, is the extent to which his considered public policy views encroach on his interpretation of the Constitution. Rather plainly, the death penalty is perfectly constitutional. It is, after all, specifically permitted in both the 5th and 14th Amendments. Abolishing the death penalty may be the right thing to do. That determination, though, is properly the place of the legislature rather than the courts.

Correction: The original erroneously referred to the 6th Amendment rather than the 5th.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. John Benton says:

    Is anyone in favor of bringing back the Chian Gang. It would not be all that bad. But the ACLU wouldn’t have that, now would they.

  2. talboito says:

    Have you been on a chain gang to say “it would not be all that bad”? Not that I ever have, but it is safe to assume they suck something mighty.

    Whether certain convicts might deserve chain ganging we can argue, but chain gangs are most assuredly “all that bad”.

  3. McGehee says:

    I would think that perhaps Mr. Benton’s point is that there are worse things than the chain gang.

    And frankly, I kind of like the idea that prison should “suck something mighty.” It’s in parallel to the principle voiced long ago by an army general, to the effect that it’s a good thing war is so horrible, else we’d grow too fond of it.

    Likewise, prison should “suck something mighty,” so that people want to avoid it too.

  4. slickdpdx says:

    Just because some are able to avoid it, doesn’t justify denying other victims and their families the ultimate justice…The lack of complete confidence in our determinations of guilt is a bigger problem for the ultimate penalty.

  5. Caitlin says:

    The death penalty is permitted in the Constitution, but only on a conditional basis (hence the debate about whether or not it is actually constitutional).

    The 6th amendment does not address the death penalty specifically, but rather outlines the right to a trial by an impartial jury and the right to an adequate defense. The 5th amendment, on the other hand, is cited regularly in defense of the death penalty. It states that no personal shall be “deprived of life, liberty, or property, without due process of law”, which many have argued reflects the fact that the founders considered capital punishment acceptable under certain circumstances. However, this statement is conditional: if there is due process, then capital punishment is acceptable. To defend the death penalty using this amendment would require one to assert that due process is a reality for all criminal defendants accused of capital offenses. Because such a sizable body of evidence suggests otherwise, this constitutional defense is problematic.
    The 14th amendment extends this clause to the states, and thus the same argument applies.

    There is much room for debate in this area, but to say that the death penalty is “specifically permitted in both the 6th and 14th Amendments” is an oversimplification of the issue.

  6. James Joyner says:


    Yes, I meant the 5th.

    But “due process” has never meant anything more substantial than a jury trial, the right to counsel, and so forth. Indeed, the same “conditional” nature applies to imprisonment (deprivation of “liberty”) or fines (deprivation of “property”) as to capital punishment. Neither Stevens nor any serious constitutional scholar argues that they are unconstitutional, even though the same flaws inherent in the system apply.

  7. nash says:

    I’ve seen a few documentaries on people wrongly convicted where new evidence that would exhonerate them (like DNA evidence or evidence that a witness lied) wasn’t allowed in at appeal. I heard that in the Terry Schavio case the judges hearing the appeals refused to look at new evidence and relied only on the findings of the original judge. Maybe the problem isn’t with the death penalty, but with the way the judges run the appeals. Doesn’t Stevens have any say in that?

  8. bryan says:

    which many have argued reflects the fact that the founders considered capital punishment acceptable under certain circumstances.

    One only has to do a little research into the history of criminal punishment to determine that the founders had no problem whatsoever with capital punishment. You don’t have to “argue” that fact.

  9. spencer says:

    Believe it or not the liberal state of Massachusetts has
    recently started using chain gangs.