An op-ed by Bob Herbert of the New York Times highlights issues raised by former Supreme Court Justice John Paul Stevens that changed his mind on the death penalty in the U.S. Herbert cites information collected by the Death Penalty Information Center and points to shoddy defense and state misconduct in the deliberate withholding of evidence as prominent abuses in the system. “Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants.” According to Herbert, “The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.” Read full op-ed below.Below is an essay for our thirty-day series on John Paul Stevens by James Liebman, the Simon H. Rifkind Professor of Law at Columbia Law School. Liebman was a clerk for Justice Stevens during the 1978 Term and has since argued several capital and habeas corpus cases before the Supreme Court.
As he prepares to retire from the Supreme Court, Justice Stevens is justly being hailed for his intellect, independence, leadership, and grace. I would add another encomium: innovative legal problem solver. I don’t mean someone who looks to the law to solve social problems. I mean a judge who looks to the law to solve its own problems – someone who believes deeply in the law’s integrity but instead of assuming the law is perfect, assumes it has a capacity for self-correction.
The meaning of the Eighth Amendment as applied to the death penalty is an example of a legal problem Justice Stevens has led the Court in trying to solve. The Eighth Amendment is problematic, of course, because it obliges judges to invalidate “cruel and unusual punishments” while providing so little evidence of its meaning that it tempts judges to enforce their own, not the law’s, values. Nor are there easy fixes, such as Justice Scalia’s idea that the provision only bans punishments not authorized by statute – as if “cruel and unusual” meant “cruel and illegal” and didn’t bear at all on whether, for example, Congress or a state legislature could prescribe death as a punishment for illegal immigration.
The Death Penalty Information Center collects relevant death penalty articles that have appeared in print and on media Web sites. Our annual compilation is a representative sample of the extensive media coverage given to capital punishment for a particular year and is not inclusive of all such articles. For those interested in examining the titles and sources for this coverage, we have prepared an index of the articles from 2009 in Excel format. The index is arranged chronologically and may be sorted or searched after downloading. Each article’s entry gives its author, title, source, and date. It does not include, however, the full text of the articles listed. Click