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Justice Stevens, the Death Penalty, and Race

Originally published via What the Data Say.


The recently deceased former Supreme Court Justice John Paul Stevens kept offering opinions about constitutional issues throughout his many years of retirement. Notably, he changed his mind and came out strongly against the death penalty, because among other problems it is racist in its application.



The recently deceased former Supreme Court Justice John Paul Stevens kept offering opinions about constitutional issues throughout his many years of retirement. Notably, he changed his mind and came out strongly against the death penalty, because among other problems it is racist in its application.


The United States is the last western democracy still executing people. Significantly, a nation cannot join the European Union if it uses capital punishment.


The power of public opinion in the United States is readily seen in the issue of the death penalty, or state-sanctioned killing as some call it. The 1950s and 1960s saw public protests against capital punishment, and its use declined. In 1967 there were only two executions.

An unofficial moratorium on executions went into effect in 1968 as states waited to see how the Supreme Court would rule on the constitutionality of capital punishment. The answer came in 1972 in the case of Furman v. Georgia, when the Court ruled that capital punishment was unconstitutional as it was then applied and suggested that new laws might be acceptable if they provided clear standards for using death sentences.


By this time, many states were ready to re-establish the death penalty. Between 1972 and 1976, thirty-five states rewrote new capital punishment laws to meet requirements set forth by the Supreme Court.


Why this change, why were states now raring to go with death sentences when they had halted then in the mid-1960s? A key reason was the increase in violent crimes. Another reason was race—seen in the urban rebellions in the late 1960s–which precipitated the “law and order mantra” of many politicians, starting with Richard Nixon.


Public attitudes increasingly favored the death penalty as the “law and order” political focus gained ground. In 1976, six months after he joined the Supreme Court, Justice John Paul Stevens voted with the narrow majority to bring back the death penalty after the moratorium.

However, in 2008, two years before he retired, Justice Stevens reversed his position and wrote in an opinion that he now believed the death penalty to be unconstitutional. Two years later when he retired from the bench, he wrote an essay explaining that among the problems of the death penalty was racism.


One of the reasons we still have the death penalty is that the Supreme Court sanctioned racism in 1987. That year the Court ruled in McCleskey v. Kemp that it was not unconstitutional for a state to administer a criminal justice system under which murderers of victims of one race received death sentences much more frequently than murderers of victims of another race.


Iowa law professor David Baldus and his colleagues had demonstrated in a major study that in Georgia, murderers of white victims were eleven times more likely to be sentenced to death than were murderers of black victims. Controlling for race-neutral factors and focusing solely on decisions by prosecutors about whether to seek the death penalty, Justice Blackmun observed in dissent, the effect of race remained “readily identifiable” and “statistically significant” across a sample of 2,484 cases.


But the Court rejected the idea that statistical evidence was sufficient to show a constitutional violation, ruling that a defendant must show “exceptional clear proof” of discrimination in his or her case. Many people condemned this ruling as a low point in the quest for equality, comparable to the Dred Scott case in 1857 which held that people of African ancestry were not entitled to the protections of the Constitution.


It is time for the United States to listen to Justice Stevens (and Justices Marshall and Brennan) and eliminate this unjust and uncivil act; however, it will take pressure from the public to do so.

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