Retired U.S. Supreme Court Justice John Paul Stevens, who described his deciding vote to uphold the constitutionality of capital punishment in 1976 as the one court vote he most regretted, has died. He was 99 years old. A media advisory released by the Supreme Court on July 16, 2019, said that Stevens died of complications from a stroke he suffered the day before. “He brought to our bench an inimitable blend of kindness, humility, wisdom, and independence,” Chief Justice John Roberts said in the media advisory. “His unrelenting commitment to justice has left us a better nation.”

Appointed in 1975 by Republican President Gerald R. Ford, Stevens was a classic judicial conservative whom court watchers later regarded as a leading progressive voice on the Court. After his retirement from the bench in 2010, he repeatedly stated that his approach to cases had not changed during his three-decades tenure on the Court and that he had not become a liberal. Rather, he said, the Court had moved to the political right.

Shortly after Justice Stevens’ appointment, the Court accepted for review five cases that challenged the constitutionality of the death penalty itself and the various capital-sentencing schemes states adopted in response to the Court’s 1972 decision that struck down all existing death-penalty statutes. Justice Stevens voted in the majority in all five cases, providing a fifth vote upholding the constitutionality of the death penalty in Gregg v. Georgia and of Georgia’s, Florida’s, and Texas’s death-penalty statutes and voting with the majority in declaring North Carolina’s and Louisiana’s mandatory death sentencing statutes unconstitutional.

In Gregg, Stevens wrote that “[t]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Yet while supporting the constitutionality of capital punishment, he consistently voted to limit its use, voting in 1988 to bar its application to offenders aged 15 or younger and casting one of the five votes in 2005 to extend that proscription through age 17. In 2002, he wrote the opinion for the Court declaring that the use of the death penalty against persons with intellectual disability constituted cruel and unusual punishment. By 2008, after three decades of exposure to capital cases, Justice Stevens had concluded “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,” he wrote, is “patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

In the Fall of 2010, following his retirement from the Court, Justice Stevens expressed regret for his vote to uphold the constitutionality of the death penalty and of the Texas death-penalty statute. He explained the evolution of his views in interviews with ABC News and NPR. “I thought at the time … that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate.” However, he said, over the years, “the Court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense.” Those decisions, he said, made death penalty procedures more sympathetic to prosecutors: “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing.”

Speaking at a capital case seminar in California in February 2016, Justice Stevens called the death penalty “a wasteful use of resources with no demonstrated benefit to society. Taxpayers,” he said, “should terminate this waste as expeditiously as possible.” With the availability of life without parole as an alternative, he said “the deterrence value of the penalty has diminished almost to zero.” Stevens cited the execution of Texas death-row prisoner Carlos Deluna, “a man who was unquestionably innocent of murder,” as an example of the “ever-present potential for mistake. … [I]t is time to put an end to irrevocable and mistaken state action of that kind,” he said.


Jeffrey Rosen, The Impartial Justice, The Atlantic, July 17, 2019; Nina Totenberg, Retired Justice John Paul Stevens, A Maverick On The Bench, Dies At 99, July 16, 2019; Greg Stohr, Retired Supreme Court Justice Stevens, Liberal Voice, Dies at 99, Bloomberg News, July 162019.