Justice Stevens sez:

What happens when you get what you want, but you don’t get it in a way of which you approve?

I am, unlike most conservatives, a strong opponent of capital punishment. To me, if someone is going to be pro-life, he should be pro-life; if I can justify the execution of someone, then another person can justify the abortion of an unwanted child. At that point, it simply becomes a question of whose judgement prevails, rather than a real concern for life.

And while death penalty opponents have had a couple of victories in the past couple of years, with the Supreme Court finding the execution of people who were minors when they committed capital offenses and the execution of the mentally retarded to be unconstitutional, I don’t believe that such determinations ought to be made by the Supreme Court at all.

This all comes to mind, again, because Associate Justice John Paul Stevens has spoken out. The Associated Press wrote:

Supreme Court Justice John Paul Stevens issued an unusually stinging criticism of capital punishment Saturday evening, telling lawyers that he was disturbed by ”serious flaws.”

Stevens stopped short of calling for an end to the death penalty, but he said there are many problems in the way it is used.

Justice Stevens is one of the most liberal members of the Court; he’s also, at 85, the oldest current Justice, and the second longest serving. (Chief Justice William Rehnquist has been on the Court longer.)

The AP article noted that Justices Ruth Bader Ginsberg and Sandra Day O’Connor have made statements “about concerns that defendants in murder cases are not adequately represented at trial.” Justice O’Connor has submitted her resignation, to be effective upon the Senate confirmation of her successor.

In recent years he has been influential in votes that barred states from executing mentally retarded killers and those who were juveniles when they committed their crimes.

The Supreme Court frequently splits 5-4 in capital cases, and often O’Connor is the pivotal vote.

O’Connor, 75, announced last month that she was retiring, and Stevens told lawyers that her departure was ”sad news for me.”

President Bush has nominated federal Court of Appeals Judge John G. Roberts to succeed Justice O’Connor; if confirmed, Mr. Roberts is expected to be more conservative than was Justice O’Connor.

The Associated Press article erred, however, in stating that Justice O’Connor was the “pivotal vote” in the recent capital cases: in both of the two most important cases, Atkins v. Virginia (2002) and Roper v. Simmons (2005), her vote was not crucial. She was part of a 6-3 majority in Atkins, and a 5-4 minority in Roper.

But capital punishment ought not to be something that the Supreme Court can declare unconstitutional; the Constitution specifically recognizes capital punishment as a possibility, specifying that:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If the Constitution itself accepts the idea of capital punishment, as long as such is done only with due process of law, it is pretty difficult to see how the Supreme Court could reasonably find capital punishment to be unconstitutional. Of course, simple reason and the actual words of the Constitution have not always been sufficient to prevent the Supreme Court from acting in a contrary manner!

There is, of course, a right way to do things. There are already twelve states which do not have capital punishment on the books; it is the proper function of the legislature to pass laws and establish the punishments for violation of those laws.

The proper function of the Supreme Court in capital cases would be to determine whether due process had been followed (as it sometimes is not), and remand those cases in which it has not been followed back to the lower courts to remedy the situation; it ought not to be the province of the Supreme Court to determine that due process is somehow violated by allowing the death penalty for an entire group of people.

I’ve gotten what I wanted with the decisions in Atkins v. Virginia (2002), which held that execution of mentally retarded criminals are “cruel and unusual punishments” prohibited by the Eighth Amendment, and Roper v. Simmons (2005), which barred the execution of murderers who were younger than eighteen when they committed their crimes. And I want to see capital punishment in the United States eliminated completely. But I don’t want to see the Supreme Court doing that elimination; that is the proper job of our state legislatures.