Stevens: 'Serious flaws' in death penalty

Stevens changes subject in debate over O'Connor's replacement

Justice J.P. Stevens spoke to a meeting of the ABA over the weekend and used that time to make some unprepared comments about the retirement of Justice O'Connor, and about the capital punishment system.

His comments about O'Connor indicated that the Court was caught somewhat off-guard by her retirement, "Stevens, speaking in his hometown of Chicago, started his Saturday night speech to lawyers with what he called the 'sad news; that O'Connor was leaving the court.

'It's really a very, very wrenching experience,' he said." That is the first non-press release comments I've read from any of the other Brethren about O'Connor's retirement.

In addition, it appears that Justice Stevens feels that the death penalty system is flawed enough to need to become a part of the debate about the nomination of John Roberts to Associate Justice.

The comments [about O'Connor's retirement] were not part of his prepared remarks for the evening, ... nor were the remarks about capital punishment.

Stevens said DNA evidence has shown "that a substantial number of death sentences have been imposed erroneously."

"It indicates that there must be serious flaws in our administration of criminal justice," he said.

Death penalty cases dominate the work of the high court. Week after week justices deal with final emergency appeals, sometimes filed in the late night hours.

In their last term which ended in June, justices overturned the death sentences of four inmates, ruled that states cannot put to death killers who were not at least 18 years old at the time of the crime and held that it was unconstitutional to force defendants to appear before juries in chains during a trial's penalty phase.

Justices already have four capital cases on their docket when they return to work in October, including a potentially significant issue of letting inmates have a new chance to prove their innocence with DNA evidence.

Other Supreme Court justices, including O'Connor and Ruth Bader Ginsburg, have also spoken out about concerns that defendants in murder cases are not adequately represented at trial.

But Stevens told the ABA that the problems were more dramatic.

He said the jury selection process and the fact that many trial judges are elected work against accused murderers. He also said that jurors might be improperly swayed by victim-impact statements.

The 'elected trial judges' comments are particularly perceptive. It has never made sense to me that judges who will be running for reelection later in the year, and are facing opposition who will be promising a vengeful electorate that they are willing to be "tougher on criminals", are making life-and-death decisions in court rooms.

It is reasonably clear that the addition of Roberts to this Court means less opportunities that the "serious flaws in our administration of criminal justice" will be thoroughly examined and reasoned through.

Of course, thinking of Justice Stevens and the death penalty, I cannot help but post one of my favorite concurring opinions of all time - J. Stevens from Roper v. Simmons, 543 U.S. ___ (2005):

Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court’s interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. [citation omitted] The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day–Alexander Hamilton, for example–were sitting with us today, I would expect them to join Justice Kennedy’s opinion for the Court. In all events, I do so without hesitation.

Read more about Judge John Roberts, capital punishment, Justice O'Connor, and Justice Stevens at some of my previous posts:
Associate Justice John Roberts...
Interesting O'Connor perspectives...
Justice O'Connor retires...
Believe it or not...
Go buy this book...
Capital Punishment in Texas...
Will Texas lose the death penalty?
Lethal Injustice...
To good to archive...
Stevens speaks on the role of Int'l law...
Software models Capital Punishment outcomes...
O'Connor extols role of international law...