Former Justice Stevens: Decision to Uphold the Death Penalty was “the one vote I would change”

Justice John Paul Stevens says he regrets one vote during his time at the Supreme Court – his decision to uphold the death penalty in 1976.

Earlier this year, 90 year old Justice John Paul Stevens announced his retirement at the end of the court’s session in June. He was the longest serving member of the court having sat for almost 35 years.

In his first court session in 1976, Stevens sat on the key case of Gregg v. Georgia in which the court held 7 – 2 to uphold the death penalty. With Justice Stewart and Powell, Stevens concluded that the death penalty was not “cruel and unusual” under the 8th and 14th Amendment. This was on the basis that the procedure for imposing the death penalty allowed for individual consideration of each case. As such, the court suggested a bifurcated penalty phase. The trial would be split into two stages the first to ascertain guilt, the second what penalty should be given. If the defendant is found guilty, the jury is given additional information in order to decide whether ot not to hand out a death sentence.  

Now Justice Stevens says this decision was “incorrect” commenting that the 1976 court "did not foresee how it would be interpreted." In an interview with NPR, as his replacement, Justice Elena Kagan, sat for the first time, Stevens shared his thoughts on the Supreme Court and some of its key decisions.

On the death penalty he said: "I thought at the time ... that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate," he says. But, over the years, "the court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense."

The fact that the decision to uphold the death penalty is Justice Stevens’ one regret in the context of over 400 opinions speaks volumes. It symbolizes the importance of the issues surrounding the death penalty and ensures that we will continue to strive to end it. For this, I almost love Justice Stevens. I love that he admits he got it wrong and I love that he says the court is still getting it wrong.

However, the reality is Justice Stevens is far too late. It’s easy for him to speak out after retirement and after all, he is only confirming what we already know: The death penalty in the US should have disappeared in the 1970s.