Supreme Court justice admits that risk of wrongful death sentences has increased

Even the Old Testament, often seen as the textbook of retributive justice, suggests that it is better for the guilty to go free than for innocent people to suffer:

 “And the Lord said, if I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes...”

However, Supreme Court Justice John Paul Stevens admitted on Wednesday that modern pressures on the judicial system have increased the risk of innocent people being sentenced to death. Speaking at a judicial conference in Chicago, Justice Stevens told his audience that “the risk of an incorrect decision has increased.”

Stevens said that capital juries are dominated by people who favour the death penalty, largely because prosecutors can exclude jurors who express reluctance to pass a death sentence. In US capital trials, the law only allows a defendant facing the death penalty to be tried by a jury which is “death-qualified”. To attain this rather sinister qualification, potential jurors go through an intensive questioning procedure called a “voire dire”. Jurors who state that their verdict may be affected by personal, moral or emotional objections towards handing down a death sentence are removed from the panel. The aim of this process is to produce a fair and impartial jury - but of course, as Justice Stevens has noted, the result is quite the opposite.

Justice Stevens added that the brutality of murders can put pressure on prosecutors to seek a death sentence rather than life without parole. In jurisdictions with the death penalty, it is the prosecutors who decide whether to seek death where an accused is charged with first-degree murder. Of course, as prosecutors are usually elected officials, one of the greatest influences on the decision is popular opinion: being soft on crime is never a vote-winner. "The dynamics of the litigation," Stevens said, increases the risk of "incorrect decisions" regarding who should be sentenced to death.

Sadly, it is no secret that wrongful convictions occur. Two months ago Rick Perry, Governor of Texas, granted a posthumous pardon to Tim Cole. Cole died from an asthma attack after spending 13 years on death row after being convicted of rape. Ten years later, DNA evidence proved his innocence.

Similarly shocking is the fact that some of America’s most senior judges have said that there is nothing unconstitutional about executing an innocent person. In his dissenting opinion given last year on the case of Troy Davis, Supreme Court Justice Antonin Scalia stated that as long as the prisoner had a fair trial when first convicted, any new evidence is irrelevant - even if it is incontrovertible proof of innocence, such as a DNA test.

Justice Stevens, on the other hand, changed his mind on the constitutionality of capital punishment in recent years, stating in a 2008 opinion regarding the use of lethal injections that the death penalty “represents the pointless and needless extinction of life”. In a concurring opinion, he became the first of the nine sitting Supreme Court justices to say that the death penalty violates the Eighth Amendment prohibition against cruel and unusual punishment.  He urged his colleagues to re-examine the constitutionality of capital punishment because of concerns it is used in a racially discriminatory way and risks executing the innocent.

Justice Stevens is now set to retire this summer after 35 years on the bench. It was announced today that he may be replaced by Solicitor General Elena Kagan, who has previously stated she is 

“fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional”. 

Let’s hope that she follows Justice Stevens’ example and changes her mind.