Retired Justice John Paul Stevens: the death penalty does us no good.

In the New York Review of Books, in the course of reviewing David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition, retired Supreme Court Justice John Paul Stevens provides a critique of the continuing utility and wisdom of the death penalty.

Any human institution is better understood if one understands its history. I’ve often made this point in connection with our understanding of what it means to be an author, a creator, or an artist. But the point is a general one and quite plainly also applicable to an understanding of the death penalty, which, as Justice Stevens points out, “has roots in gruesome and public spectacles: unspeakable torture and postmortem desecrations of offenders’ remains designed, respectively, to maximize suffering and exalt the omnipotence of the sovereign.”

The increasing availability of deportation and imprisonment as a means of coping with people deemed undesirable by the sovereign, however, led to a reduction in executions, a new found concern with making executions more humane, and, eventually, the “lengthy and elaborate legal process [that] has become a central feature of American capital punishment.” As a result, several people have been executed over 20 years after their crimes, and some prisoners have now been on death row for over 30 years. Garland concludes that “[s]uch delays do not just undermine the death penalty’s deterrent effect; they also spoil its capacity for satisfying retribution.” He also believes that efforts t o make executions more humane similarly minimize the deterrent and retributive qualities of the death penalty:

What once was a frightening public spectacle now resembles painless administration of preoperative anesthesia in the presence of few witnesses. American officials do not enjoy executions; “they seem, in short, embarrassed, as if caught in a transgression.”

Nevertheless, in the U.S., the political strength of localities relative to the federal government has led to the retention of the death penalty, which has disappeared from Western Europe. There is a long history of community-level executions in America dating to colonial times. Thus, in reaction to Furman v. Georgia, 408 U.S. 238 (1972), the 1972 Supreme Court case resulting in a moratorium on executions in the forty-two jurisdictions that authorized them, 34 states enacted new death penalty laws by 1980. Much of the political rhetoric behind the new capital punishment laws was grounded in “states’ rights,” the all purpose justification for resistance to nationwide standards going back to slavery and, as Justice Stevens points out, “like the related vigorous and continuing criticism of liberal Warren Court decisions protecting the rights of criminal defendants and minority voters, an important part of the Republican Party’s ‘Southern strategy.’” Because of this unintended consequence of Furman, Garland argues that since the 70s

[T]he Supreme Court [has] focused on transforming capital punishment, requiring new procedural protections, reducing the cruelty of executions, and devolving power to “the people” at the local level. The concern with local policymaking that Garland emphasizes, however, has not prevented Supreme Court decisions from eliminating categories of defendants (juveniles and the mentally retarded) and offenses (rape and unintentional killings) from exposure to capital punishment nationwide.

The persistence of the death penalty in the U.S., however, begs for explanation. Garland’s explanation is largely cultural. The persistence of the death penalty satisfies a cultural need to address issues pertaining to death:

Garland concludes that capital punishment today is “reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.” Instead, the death penalty promotes “gratifications,” of “professional and political users, of the mass media, and of its public audience.” In particular, he contends, capital punishment derives “its emotional power, its popular interest, and its perennial appeal” from five types of “death penalty discourse.” They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. He concludes that “the American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.”

The cultural importance of death in American political and cultural life is illustrated by political avowals for support for capital punishment to express support for “law and order.” Thus, “California Senator Barbara Boxer bragged that she voted 100 times for the death penalty. And George W. Bush first ran for president in a year when, as governor of Texas, he had presided over the largest number of state executions ever carried out in a single twelve-month period—a total of forty in the year 2000.” Where judges are elected and have the power to overrule jury verdicts, as in Alabama, they override and impose the death penalty 10 times more often than they override to impose a punishment other than death. In contrast, where judges with the power to overrule jury verdicts are not subject to election, judge-imposed verdicts favor defendants. In short, if you want to get elected to office in the U.S., it is a good idea to support the death penalty.

Justice Stevens does not believe, however, that the political and cultural interests advanced by the death penalty can justify its continued vitality. Nor does he see any justification for it in the 5 groups of people affected by it – victims, survivors, participants in the judicial process, the general public, and the defendants themselves:

To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses.

First, of course, are victims. By definition murder victims are no longer alive and so have no continuing interest.

Second are survivors—family and close friends of victims who often suffer enormous grief and tangible losses. The harm to this class is immeasurable; but punishment of the defendant cannot reverse or adequately compensate any survivor’s loss. An execution may provide revenge and therapeutic benefits. But important as that may be, it cannot alone justify death sentences. We do not, after all, execute drunken drivers who cause fatal accidents.

Third are participants in judicial processes that end in executions—detectives, prosecutors, witnesses, judges, jurors, defense counsel, investigators, clemency board members, and the medically trained personnel who carry out the execution process and whom Garland describes as being somewhat embarrassed by doing so. While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs (which Garland estimates are at least double those of noncapital murder cases) are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant’s guilt.

The fourth category consists of the general public. If Garland’s comprehensive analysis is accurate—that the primary public benefits of the death penalty are “political exchange and cultural consumption”—and as long as the remedy of life imprisonment without the possibility of parole is available, those partisan and cultural considerations provide woefully inadequate justifications for putting anyone to death.

Fifth, of course, is the class of thousands of condemned inmates on death row who spend years in solitary confinement awaiting their executions. Many of them have repented and made positive contributions to society. The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death.

Can we force a prisoner to be medicated in order to be competent enough to be executed?

Truly only Franz Kafka could do justice to some of the questions that arise in our justice system. In Singleton v. Norris, 319 F.3d 1018 (8th Cir. 2003), the defendant argued that he could not be executed because he was not mentally competent and that he could not be forced to take medication to make him medically competent because to do so would make him eligible for execution and therefore could by no means be in his “best medical interest.” The 8th Circuit disagreed, requiring the question whether the medication to make the defendant competent  to be answered “without regard to whether there [was] a pending date of execution.” Id. at 1026. Both the death sentence and involuntary medication regime had been lawfully imposed. The defendant thus could no longer assert either a life interest nor a liberty interest.

Now, though, the North Carolina Criminal Law Blog suggests that more recent U.S. Supreme Court precedents “may collectively stand for the notion that the execution of an inmate who is competent only by virtue of forced medication might violate the Eighth Amendment’s evolving standards of decency.”

I find the suggestion encouraging, but I am skeptical. We seem loathe to find reasons not to execute people these days.