Stevens Is Wrong Even When He's Right

John Paul Stevens assumed his seat on the Supreme Court on December 19, 1975.  Three and a half months later, at the end of March, the Court heard oral argument in cases from five states (Texas, Florida, Georgia, North Carolina, and Louisiana) that had enacted new death penalty laws after the Court's 1972 decision in Furman v. Georgia holding that all then-existing death penalty statutes were unconstitutional.  On July 2, 1976, just over six months after he joined the Supreme Court, Justice Stevens joined with a majority of the court to hold that the new laws in Georgia, Florida, and Texas provided sufficiently guided discretion to ensure that the death penalty would be applied fairly and rationally.   Gregg v. Georgia.  

As Justice Brennan explained, Stevens thought that those state's new statutes would

adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.

The belief was fanciful then.  Over time, the fact of the fantasy became obvious.  It could not be done.

It wasn't until February 1994, just six months before he retired, that Justice Blackmun acknowledged the impossibility.  Writing in regard to Callins v. Collins, a death penalty case the Court declined to hear, Blackmun wrote the memorable line

From this day forward, I no longer shall tinker with the machinery of death.

That's the familiarly famous phrasing.  But the remainder of the paragraph is the meat.

For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question — does the system accurately and consistently determine which defendants "deserve" to die? — cannot be answered in the affirmative. It is not simply that this Court has allowed vague aggravating circumstances to be employed, see, e. g., Arave v. Creech, 507 U. S. 463 (1993), relevant mitigating evidence to be disregarded, see, e. g., Johnson v. Texas, 509 U. S. 350 (1993), and vital judicial review to be blocked, see, e. g., Coleman v. Thompson, 501 U. S. 722 (1991). The problem is that the inevitability of factual, legal, and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution.

Stevens took longer.  He spent not 20 years but 32 tinkering with the machinery of death.  It wasn't until 2008, in Baze v. Rees, that he formally accepted the impossibility of Gregg's fiction.  Quoting Justice White's concurring opinion in Furman, he explained.

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. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment." 

But if that was an explanation of what's wrong with state murder, it didn't do much to address how Stevens came to change his mind.

Now retired, no longer a justice and entitled to the appellation only as an honorific, Stevens explains.  In a review of David Garland's Peculiar Institution: American's Death Penalty in an Age of Abolition,  for the New York Review of Books, Stevens is blunt.  The promise of guided discretion has been rejected by the Court.

In his opinion in Furman, Justice Stewart observed that the death sentences before him were “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” The constitutional remedy to deaths being “so wantonly and so freakishly imposed” would narrow the category of death-eligible offenses while enforcing procedural safeguards against the risk that facts unrelated to moral culpability would affect sentencing. More recent decisions have unwisely rejected Justice Stewart’s narrowing approach.

In my last post, I quoted a piece of the review where he gives examples of the Court's turning its back on the rules he believed necessary to ensure an accurate, fair, and rational sentence.  I'm going to repeat it here.  

In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.

“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”

Justice Stevens did not name those new justices. One was Justice Anthony M. Kennedy, lately the court’s swing justice, who replaced Justice Powell.

The other was Justice Souter, who replaced Justice Brennan and in other cases generally voted with Justice Stevens and the rest of the court’s more liberal wing.

Justice Stevens also had harsh words for the 5-to-4 decision in 1987 in McCleskey v. Kemp, which ruled that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution. He said the decision effectively allowed “race-based prosecutorial decisions.”

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.

Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.

The point he was making is that with changes in the Court's personnel so there are changes in its decisions. Scott Greenfield, riffing off that same passage, saw the problem.

That wild swings in the law are based upon the vote of a single justice is really a remarkable indictment of the process.

Of course, in any system where you count votes, changing the voters can change the outcome.  And where the votes are close and the voters few (in those cases that are decided 5-4, say), it doesn't take much.

Brennan recognizing something of the cynicism of the process, had made the point for years.

With five votes you can do anything around here.

Thurgood Marshall, making the same point Stevens did about Booth and Payne, put it more bluntly.  His angry dissent in Payne begins this way.

Power, not reason, is the new currency of this Court's decisionmaking. Four Terms ago, a five-Justice majority of this Court held that "victim impact" evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. Booth v. Maryland, 482 U. S. 496 (1987). By another 5-4 vote, a majority of this Court rebuffed an attack upon this ruling just two Terms ago. South Carolina v. Gathers, 490 U. S. 805 (1989). Nevertheless, having expressly invited respondent to renew the attack, 498 U. S. 1076 (1991), today's majority overrules Booth and Gathers and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.

Again, it's endemic.

When the votes come out my way (as when the Ohio Supremes decided in State v. Bodyke that stare decisis did not apply to "constitutional claims" so it could ignore its prior rulings that sex offender registration and notifications laws could be applied retroactively and hold that the Adam Walsh Act was unconstitutional when applied retroactively), I think that's a good thing.  When they go against me, I join Justice Marshall's outrage.

But as Scalia observed in Payne, Marshall's rage over the point really was a matter of whose ox was being gored.

This guy who calls himself Atticus and runs the strikelawyer blog maintains that we win cases for the despised only by random chance and that the judiciary is universally (or nearly so) and implacably committed to ensuring that all alleged criminals are convicted and are punished maximally.  He says he's a lawyer who doesn't practice because (I'm not actually sure this is the reason he claims, but I think so) the system is too corrupt.  He keeps writing comments here accusing me of some mixture of naïveté, cowardice, and lack of commitment because I will neither give up the practice of law nor declare war on the judiciary.  

There are lots of bad judges.  Some are corrupt.  Some are incompetent.  Some are morally and intellectually dishonest, imposing the outcomes they want regardless of the facts and the law.  There are, also, many good judges who strive to get it right and (although he denies this) often do.

Of course, getting it right means, often, ruling in ways I find offensive because the law (enacted, legislated law as well as the case law that comes from, in part, those judges of what Atticus seems to imagine to have been the golden age when Cardozo was the norm rather than the exception.  But it was Cardozo, after all, who opposed the exclusionary rule on the basis that the the criminal ought not benefit from the constable's blunder.

There never has been a golden age.

It's always been about power.

It's always been about counting to five.  (Four in Ohio; two on appellate panels; one in trial courts.)

And it's always been, as Mr. Dooley pointed out, about the voters.

No matther whether th' constitution follows th' flag or not, th' Supreme Coort follows th' illiction returns.

The thing is, Stevens is wrong. Oh, he's factually right enough.  But he's still bought into his Gregg fantasy.  (His statement in Baze is far more compelling than his explanation in the review.)

Gregg's conclusion that Georgia and Florida and Texas had written laws that would avoid the unfair, irrational, arbitrariness that led to Furman was doomed from the start.  The problem wasn't that the Court's personnel would change and lack adequate respect for the views of those they replaced.  The problem wasn't who would ascend to the Court.

The problem was in the very idea that the decision of who should live and who should die can be made rationally, without bias or favoritism, and without a nod to local politics and the media, that it can be done properly by judge or jury, that discretion can ever be adequately guided or cabined, that whole congeries of ideas.
It's not merely a chimera. It's a flat-out lie.
It can't be done, and we pretend it can only when we bury our heads in the sand and imagine that judges and juries and lawmakers and governors are all passionless and disinterested.
Ignore emotion. Pretend (as Ohio law requires) that the heinousness of the crime is irrelevant to the question of whether to kill. And then figure out how to weigh things that cannot be quantified and, in any case, can't be placed on the same balance.

The law (both legislative and case law) routinely demands that we act on legally created fictions.

The danger comes when we forget that they're fictions and pretend that they can become reality.