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.