Justice Stevens Says Death Penalty Unnecessary, Wasteful, and Creates Higher Risk of Error

In a dis­cus­sion at the George Washington University School of Law, retired Supreme Court Justice John Paul Stevens said the death penal­ty cre­ates a high­er risk of error than oth­er crim­i­nal cas­es and is unfair, unnec­es­sary, and a ​“ter­ri­ble waste” of resources. Using the Boston marathon bomber tri­al as an exam­ple, Justice Stevens said jury selec­tion pro­ce­dures in cap­i­tal cas­es pro­duce juries who are ​“not rep­re­sen­ta­tive of the com­mu­ni­ty.” He said that, under these pro­ce­dures, ​“most of the 75%” of Bostonians who opposed the death penal­ty ​“could be chal­lenged for cause and do not make it” onto the jury. ​“That’s one rea­son that the death penal­ty is much more unfair than we thought it was at the time back when we decid­ed the three cas­es” that rein­stat­ed the death penal­ty in 1976 after the Court had pre­vi­ous­ly ruled its appli­ca­tion uncon­sti­tu­tion­al. Justice Stevens went on to say, ​“I had expect­ed that the pro­ce­dures would be more pro­tec­tive of the defen­dants in death cas­es than in ordi­nary crim­i­nal cas­es. And in sev­er­al respects, … they in fact are more pro-pros­e­cu­tion. And so the risk of error is larg­er in death cas­es than it is in oth­er cas­es, and that cer­tain­ly can’t be right.” Finally, he com­pared the death penal­ty unfa­vor­ably to the alter­na­tive of life with­out parole: ​“it’s real­ly not nec­es­sary because life impris­on­ment with­out parole pro­tects the pub­lic at least as well as exe­cu­tion does and so the jus­ti­fi­ca­tion for the death penal­ty is dimin­ished. And I think if you make a cost-ben­e­fit analy­sis – the cost of the tri­als and all the rest – it is a ter­ri­ble waste of society’s resources to have these cap­i­tal tri­als that go on for so long and pro­duce an awful lot of unfortunate results.”

Justice Stevens also men­tioned a death penal­ty case as the vote he most regret­ted dur­ing his tenure on the Court. In Jurek v. Texas (1976), Stevens said, ​“I vot­ed to uphold the Texas statute and I was wrong.” He said that the Texas law should have been treat­ed as a manda­to­ry death penal­ty statute because, ​“if you read one of the instruc­tions that they had to give the jury, a cer­tain answer real­ly required the death penalty.” 

(“A Conversation with The Honorable John Paul Stevens,” Alliance for Justice, May 19, 2015; a five-minute death penal­ty dis­cus­sion begins around the 21:00 mark.) See New Voices and U.S. Supreme Court.