Justice John Paul Stevens

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By Brian Stull, Staff Attorney, ACLU Capital Punishment Project

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"Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time." These were the eloquent words of retiring Justice John Paul Stevens in Graham v. Florida, in which the Supreme Court this term decided that the punishment of life without parole for minors who did not kill is cruel and unusual punishment. But Justice Stevens' words apply with equal force to his approach to the death penalty during his nearly 35-year tenure on the Court, which regrettably ends today.

The ACLU has long opposed capital punishment. By contrast, in 1976, Justice Stevens voted to uphold the capital statutes passed in response to the Supreme Court's 1972 decision in Furman v. Georgia. However, since then, he has repeatedly sought to eliminate unfairness in the application of the death penalty and to ensure that it was inflicted on only "the worst of the worst."

Justice Stevens wrote the court's opinion barring the death penalty for mentally retarded people as cruel and unusual punishment (link to Atkins v. Virginia). He joined the majority in several similar rulings, finding execution to be cruel and unusual punishment for adult rape, for participants in felonies resulting in death who did not themselves kill, intend to kill or intend that a killing take place, for juveniles who kill, and for the rape of a child.

Gradually, Justice Stevens began to have doubts about the fairness of capital punishment. As the Court retreated from its promise that the death penalty would be applied rationally, reliably and consistently or not at all, Justice Stevens became an eloquent voice in dissent.

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By James Liebman, Simon H. Rifkind Professor of Law, Columbia Law School. Professor Liebman was a law clerk for Justice Stevens, 1978 - 1979. His following post is adapted from comments he made at a recent ACS event examining Justice Stevens' judicial career.

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Thank you for having me, even if I do get the role of the oldest clerk standing.

I'll mention two of Justice Stevens' legacies, which might be described as "something new and borrowed (or shared)" and "something old and blue."

By "new and shared" I refer to a jurisprudential innovation Justice Stevens joined Justice Stewart in developing to interpret the Eighth Amendment. The work of dozens of cases over decades, I can only briefly summarize it here.

The Eighth Amendment presents the starkest counter-majoritarian dilemma: It obligates judges to invalidate penal laws and verdicts that impose "cruel and unusual punishment," but gives them only those four infinitely ambiguous words to use to figure out how to meet that obligation. The temptation to suffuse decisions with the judge's own religious, moral or political views is palpable.

In a dozen cases going back to the mid-1970s and culminating in the Graham v. Florida (juvenile life without parole) decision two weeks ago, the Court came up with a solution. Justice Stevens is the only Justice who joined all of those decisions that remain good law, and in 2002 he wrote the crowning example of them - Atkins v. Virginia, invalidating the death penalty for mentally retarded offenders.

This better solution is for the justices to inform their Eighth Amendment judgments by relying on literally thousands of decisions of coordinate democratic institutions made nationally, over years, to reveal a "modern consensus" as to the appropriate punishment for particular crimes or offenders.

Under this approach, the Court takes a current head count and reviews the recent trends in (1) penal laws enacted by all state and federal jurisdictions; (2) how frequently sentencers actually impose a permissible punishment; and (3) the judgments of other democratic nations. Although the Court reaches its own conclusion, it does so in the shade of - and in every case so far, has done so consistently with - the decisions of these other democratic institutions.

Justices Stewart and Stevens took this innovation a step further in addressing the constitutionality of the death penalty for murder. In their jointly authored opinion in Gregg v. Georgia, they concluded that the death penalty for murder is neither always constitutional nor always unconstitutional. They then read the Cruel and Unusual Punishment Clause - what looks like a substantive limitation - to impose procedural requirements that in effect enlist the nation's 50-odd criminal justice systems in generating a democratic consensus on the murders for which death is appropriate.