Andrew Cohen, writ­ing in The Atlantic, recent­ly exam­ined the evo­lu­tion in think­ing on the death penal­ty among Supreme Court Justices. Cohen not­ed that Justices John Paul Stevens (pic­tured), Lewis Powell, and Harry Blackmun all upheld new death-penal­ty statutes in Gregg v. Georgia (1976), there­by ush­er­ing in a return to cap­i­tal pun­ish­ment. All three, how­ev­er, lat­er said the death penal­ty under these stat­ues was not being applied con­sti­tu­tion­al­ly. Justice Powell told his biog­ra­ph­er, I have come to think that cap­i­tal pun­ish­ment should be abol­ished.” In a 1994 dis­sent­ing opin­ion, Justice Blackmun famous­ly said, I no longer shall tin­ker with the machin­ery of death.” Justice Stevens sharply crit­i­cized the death penal­ty because of prob­lems in the areas of wrong­ful con­vic­tions, racial bias, jury selec­tion, and pros­e­cu­to­r­i­al pow­er. Cohen also not­ed the evo­lu­tion in Justice Sandra Day O’Connor’s views on the death penal­ty. However, he found no Justices who went from oppos­ing the death penal­ty to supporting it.

Cohen fur­ther quot­ed Justice Blackmun rea­sons for even­tu­al­ly vot­ing against the death penal­ty: 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.”

(A. Cohen, Why Don’t Supreme Court Justices Ever Change Their Minds in Favor of the Death Penalty?,” The Atlantic, December 10, 2013). See U.S. Supreme Court and New Voices.

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