Retired Supreme Court Justice: Capital Punishment ‘Shot Through with Racism’

justice stevensThe New York Times is reporting that retired Supreme Court Justice Stevens has written an essay that offers a devastating critique of the death penalty as “shot through with racism.”  In a detailed, candid and critical essay to be published soon in The New York Review of Books, Stevens wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”  While other justices (e.g. O’Connor and Souter) have offered some commentary since retiring, their rather abstract discussions of legal issues is, apparently, nothing like the blow-by-blow critique in Justice Stevens’ death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.  But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.  He was on “60 Minutes” on November 28, 2010. (see video)

The essay is actually a review of the book Peculiar Institution: America’s Death Penalty in an Age of Abolition, by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and in the essay Stevens appears to accept its major conclusions.  Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.  According to the New York Times article, Stevens notes that the problems with the administration of capital punishment extend beyond the courthouse and into the voting booth.  Referring to the “race-based prosecutorial decisions” allowed by the 1987 McCleskey v. Kemp, ruling that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution, Stevens wrote:

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings.”

jessie danielsThis bold move by a retired Supreme Court Justice is good news for those concerned with the injustice of capital punishment.

Jessie Daniels

Jessie Daniels is Associate Professor of Urban Public Health at Hunter College.  She holds an MA and PhD in Sociology from the University of Texas at Austin. Following that, she was a Charles Phelps Taft Post-Doctoral Fellow at the University of Cincinatti.

Republished with permission from Racism Review.


  1. says

    This is sad commentary on a vengeful and biased system and for a variety of reasons among them being it never compensates for the loss because of crime; it may bring low level primal satisfaction, but it is not fair recompense, as was the case for Timothy McVey. The horrendous bombing of the federal building was disaster enough, but the execution of McVey was an early exit, an escape from the pain he caused. Still, those killed in the blast are gone and whatever satisfaction any felt in his execution pales in comparison to the loss. Talk of the death penalty being a deterent is political hogwash as the the most prolific execution chamber in the United States has done nothing that takes Texas out of the top five states in homicides. In Massachusets where there is no death penalty, not only is the rate of homicide lower, crime in general is lower than it’s distant Southern neighbor. There many other reasons the death penalty should be abolished asides from it’s hit or miss nature, most prominent among them–racism. There is no need to explain what is common knowledge that the entire system is foundationally racist. Welcome to the game Justice Stevens.

  2. says

    If capital punishment did the good claimed by its proponents, it would be shown on television. It does not deter anyone but the one executed. If anything, it excites a mentality that there is a justification for killing. Criminals minimize and justify to that point of cut-off where they will do any crime that suits their desires.

    Even by the Mosaic standards, it rarely, if ever, meets the standard of having two or three witnesses. You do not even need a dead body to convict people of murder.

    What we know is once convicted they do not want to be bothered with evidence that merely establishes a reasonable doubt. The “actual innocence” level is hard to reach, particularly when they refuse to even do proper DNA testing.

    I am not a fan of the Constitution. It has allowed Andrew Jackson to engage in genocide of Cherokees with the Indian Removal Act and declare Blacks not to be persons by his appointments to the US Supreme Court. It allowed Franklin Delano Roosevelt to stop a man from raising feed for his own chickens and to send US Citizens to concentration camps under Executive Order 9066.

    We need to replace the requirement for “actual innocence” with actual justice. Perhaps you could start with jail terms for malicious prosecution.

  3. says

    I was the court appointed defense investigator in People Vs. David Wayne Sconce. Because there is no bail in a death penalty case, Sconce spent five (5) years behind bars awaiting trial. The day of trial came and the case was dismissed for insufficient evidence that any murder had been committed in the first place!

    One of the Deputy District Attorneys who prosecuted Sconce, Harvey Giss, is now a superior court judge. The other, James Rogan, went on to become a judge, then Assembly member and finally Congressman. As a member of the House of Representatives, he was one of the impeachment managers in the impeachment trial of President Bill Clinton.

    When you are so sloppy with your investigation that a man is tried for a murder that was never committed by anybody, let alone the guy who is charged, I wouldn’t trust him/her to try somebody on a parking ticket, let alone to impeach a president of the United States.

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