Doubts About Death

The following essay for our series on John Paul Stevens is by Lauren Sudeall Lucas (scroll down on this page to see her bio). Lucas clerked for Justice Stevens during the 2006 Term, and is now a Staff Attorney at the Southern Center for Human Rights in Atlanta, Georgia.

The 2006 Term, during which I served as a law clerk to Justice Stevens, has been characterized by many as the year in which the Court made clear that it had become a strikingly more conservative institution.  To provide just a few examples: In Parents Involved in Community Schools v. Seattle School District No. 1, the Court sharply limited the circumstances under which public schools could consider race to ensure that schools were integrated.  In Gonzales v. Carhart, the Court effectively overruled its previous decision in Stenberg v. Carhart by upholding Congress’s authority to prohibit physicians from performing a specific abortion procedure, even when deemed necessary to benefit the woman’s health.  And in Ledbetter v. Goodyear Tire & Rubber Company, the Court limited the time period in which plaintiffs claiming discrimination could recoup lost wages.  It was the Term Justice Breyer decried when, speaking from the bench, he said: “It is not often in law that so few have so quickly changed so much.”

For one group, however, there was perhaps one bright spot: the group was capital defendants and the bright spot was Justice Stevens.  The death penalty cases from the 2006 Term demonstrated a continuing evolution in Justice Stevens’ jurisprudence regarding the legal process by which we put capital defendants to death and the Justice’s willingness to recognize the flaws in a system that has long been broken.

In 1976, Justice Stevens was one of three Justices who jointly authored the Supreme Court’s opinion in Gregg v. Georgia reinstating the death penalty.  By 2006, however, Justice Stevens had authored many other opinions revealing his concerns about a lack of fairness in the process by which capital defendants are convicted and sentenced, the pervasiveness of racial bias in the administration of the death penalty, the federal courts’ now limited ability to remedy constitutional errors, and the risk of irrevocable errors in capital cases.  The 2006 Term was no different, as Justice Stevens continued to emphasize both the guarantees necessary to ensure that capital defendants receive a fair trial and the current Court’s refusal to adhere to precedents establishing such protections.

In one such case, Uttecht v. Brown, the majority upheld the trial court’s excusal of a juror for cause when the juror at issue had expressed doubts about imposing a death sentence.  In an unexpected move demonstrating the depth of his concern with the majority’s analysis, Justice Stevens read his dissent from the bench, stating that the majority had “render[ed] countless Americans ineligible to serve as capital jurors and, more important, prevent[ed] countless defendants from being tried to a fair and impartial jury.”  In his written opinion, Justice Stevens explained that the fact that an individual may harbor some reservations about the death penalty does not “even arguably prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”

In another case, Landrigan v. Schriro, the majority held that the petitioner was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel because he had waived his right to present mitigating evidence and because it would not be unreasonable to assume that he would have refused to present other mitigating evidence, had he known of its existence.  Once again showing his sensitivity to real-world conditions surrounding death penalty cases, Justice Stevens dissented from the majority’s opinion, concluding that to engage in discussions of what the petitioner may or may not have done without a hearing amounted to “pure guesswork.”

But Justice Stevens did not always find himself in dissent.  On occasion, he also managed to convince a majority of his colleagues to recognize flaws in how capital cases were conducted.  In Abdul-Kabir v. Quarterman, for instance, Justice Stevens wrote for the Court, reaffirming the long line of cases following Penry v. Lynaugh, and holding that the Texas “special issue” jury instructions violated Supreme Court precedents requiring that jurors be given the opportunity “to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty.”

At one of our many meetings with the Justice during that Term, the Justice said that if he were able to change his vote in any one case, it would be Jurek v. Texas, a 1976 case holding that the Texas capital sentencing procedures satisfied the Eighth Amendment’s requirement that the sentencer be allowed to consider circumstances mitigating against capital punishment.  Although he failed to elaborate on the point, I thought his choice of case reflected just how far the Justice’s jurisprudence has come, given that he now serves as the Court’s strongest advocate for the opposing position.

Aside from the evidence found in his opinions, Justice Stevens’s care for proper procedure when imposing the death penalty can also be witnessed in his treatment of the last-minute stays of execution that are frequently filed with the Court.  For example, in recent years, Justice Stevens has advocated for automatic stays for “all executions scheduled in advance of the completion of our review of the denial of a capital defendant’s first application for a federal writ of habeas corpus,” explaining that “[s]uch a practice would . . . accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants.”

Towards the end of his time serving on the Court, it is clear that Justice Stevens’ concerns regarding the administration of the death penalty have reached new heights.  In the 2007 Term, Justice Stevens concurred with the majority’s judgment in Baze v. Rees, a decision upholding Kentucky’s lethal injection protocol as constitutional.  However, he wrote a separate opinion expressing his reservations about the administration of the death penalty more generally, stating that “[t]he time for a dispassionate impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.”  After several decades on the Court, he concluded, quoting Justice White’s concurring opinion in Furman v. Georgia, which temporarily outlawed the death penalty prior to the Court’s decision in Gregg: “I have relied on my own experience in reaching the conclusion 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 [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’”  Yet Justice Stevens felt bound by the Court’s precedents and joined the Court in declaring lethal injection permissible.  In many ways, Justice Stevens represents the dilemma of someone who has witnessed enough to know that the system of capital punishment in this country is truly flawed, yet is too pure a jurist to allow his personal convictions to trump well-established precedent.

One term later, in Walker v. Georgia, Justice Stevens again demonstrated his frustration with a broken system when he expressed concern regarding the perfunctory nature of the Georgia Supreme Court’s process for proportionality review of death sentences.  In a statement respecting the denial of certiorari, he wrote: “‘When a defendant’s life is at stake, th[is] Court has been particularly sensitive to insure that every safeguard is observed.’ . . . The Georgia Supreme Court owes its capital litigants the same duty of care and must take seriously its obligation to safeguard against the imposition of death sentences that are arbitrary or infected by impermissible considerations such as race.”

It is possible, I suppose, that some of Justice Stevens’s empathy for criminal defendants comes from his own brief experience with the criminal justice system: his father was convicted of embezzlement in 1933 (the conviction was later reversed for insufficiency of evidence).  From working with the Justice, however, it is clear that he is driven above all by a deep respect for the Court’s precedents and for the Court as an institution.  In his recent opinions in capital cases, Justice Stevens seems to have been motivated primarily not by his own personal feelings regarding the death penalty – of which I have no specific knowledge, even after working with him for an entire year – but rather by a sense that the Court has abandoned fundamental precedent guaranteeing a basic level of fairness.  In his Uttecht dissent, which he read from the bench, he accused the majority of “push[ing] aside decades of well-established law,” rendering the standard for death qualification meaningless.

As a former clerk and as someone who now represents indigent clients facing the death penalty, I will always respect and admire Justice Stevens for being able to look beyond the gruesome facts of a situation to see the human dignity beneath.  The Court has been well-served by someone who has allowed his years of experience to inform his view of how the law does and should function, who is able to empathize with those facing the law’s greatest sanction, and who strives to ensure that all defendants receive a fair trial – regardless of the crimes of which they have been accused.