In an October 2010 inter­view on National Public Radio, then new­ly-retired Supreme Court Justice John Paul Stevens said he par­tic­u­lar­ly regret­ted one vote dur­ing his 35 years on the high court — his 1976 vote to uphold the death penal­ty in Gregg v. Georgia. Stevens remarked, ​“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.” But, he added, 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.” Justice Stevens also said that the court has 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.”

The inter­view was con­duct­ed by NPR cor­re­spon­dent Nina Totenberg. She wrote more about Stevens’s views: ​“The court, he notes, has become more per­mis­sive in allow­ing pros­e­cu­tors to object to seat­ing jurors who have qualms about the death penal­ty. The result is that instead of get­ting a ran­dom sam­ple of jurors, jury pan­els are more sup­port­ive of the death penal­ty. In addi­tion, the court now allows the rel­a­tives of crime vic­tims to tes­ti­fy dur­ing the penal­ty phase of a cap­i­tal tri­al. These so-called vic­tim impact state­ments were once ruled too incen­di­ary to be per­mis­si­ble, but four years lat­er, a more con­ser­v­a­tive court reversed the deci­sion. All of this, says Justice Stevens, has changed the nature of the death penal­ty as he and the court envi­sioned it in the 1970s.”

(N. Totenberg, ​“Justice Stevens: An Open Mind On A Changed Court,” NPR, October 4, 2010). See U.S. Supreme Court. The vote uphold­ing the death penal­ty in Gregg v. Georgia in 1976 was 7 – 2. Among those in the major­i­ty were Justices Blackmun and Powell, in addi­tion to Justice Stevens. Since then, all three Justices have said they had changed their minds about the death penal­ty and no longer believed it was con­sti­tu­tion­al. If those Justices had vot­ed dif­fer­ent­ly in Gregg, the death penal­ty would prob­a­bly have been end­ed by a 5 – 4 vote in 1976. It had already been struck down 5 – 4 in 1972 in Furman v. Georgia, and Gregg and the four oth­er death penal­ty cas­es decid­ed along with it in July 1976 were the test cas­es to see if the new­ly rein­stat­ed death penal­ty statutes were constitutional.

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