“Three Justices and a Fatal Mistake”

The title of this post is the headline of this notable new Washington Monthly piece.  The piece’s subtitle reveals more clearly what the author, Cliff Sloan, is discussing and his driving perspective: “Lewis Powell, Harry Blackmun, and John Paul Stevens allowed the death penalty to return. Then they disavowed it.”  Especially with the 50th anniversary of Gregg v. Georgia now only about a year away, this piece serves as a useful reminder of the national capital punishment inflection point that the Supreme Court helped to create a half century ago.  I recommend the piece in full, and here are excerpts:

[I]t is striking that three Justices whose votes allowed the death penalty to be revived in 1976 — Lewis Powell, Harry Blackmun, and John Paul Stevens — came to regret and disavow their votes. In contrast to their 1976 votes permitting the death penalty, they eventually concluded that the death penalty is fundamentally and irremediably flawed in our constitutional system. There is much to learn from their journeys….

ur current death penalty regime dates to the 1970s. In 1972, by a 5-4 vote in Furman v. Georgia, the Supreme Court struck down all death penalty laws. Justice Potter Stewart famously stated that the standardless and random death sentences at that time were “cruel and unusual in the same way that being struck by lightning is cruel and unusual” — and thus violated the Eighth Amendment, which prohibits “cruel and unusual punishments.” When the Court decided Furman, the death penalty was in decline. Not a single person had been executed in the United States in the previous five years. Two of the five Justices in the Furman majority (Stewart and Byron White) emphasized their view that the death penalty could be constitutional if states limited its use to the most culpable defendants — the worst of the worst. In a dissent for four Justices, Chief Justice Warren Burger stressed this point and urged the enactment of new death penalty laws. A pro-death penalty firestorm swept the states. Thirty-five states passed revised capital punishment statutes. In 1976, the Court reviewed the new laws in a series of decisions under the lead case of Gregg v. Georgia. Launching the modern death-penalty era, the Supreme Court approved laws with a two-stage death-penalty process—the first for guilt or innocence and the second for life or death, with jury consideration of aggravating circumstances and mitigating factors. Laws imposing a mandatory death sentence for certain crimes, on the other hand, were found unconstitutional because they did not allow individualized determinations.

The Gregg cases split the Court into three camps—abolitionists, enthusiasts, and a floating middle. The abolitionists — William Brennan and Thurgood Marshall — found the death penalty inherently unconstitutional and rejected all of the new laws. At the other end, the enthusiasts – Burger, White, Blackmun, and William Rehnquist – voted to uphold all the laws. And the floating middle — Powell, Stevens, and Stewart—cast the deciding votes. They upheld some laws by joining the enthusiasts and struck down others by joining the abolitionists.

With the floating middle in control, the 1976 decisions gave the green light to death sentences if they complied with the two-phase procedure and adhered to safeguards. Since those fateful rulings, more than 1600 people in the United States have been killed by state governments. Another two thousand people have been sentenced to die and await their execution while languishing in harsh conditions on death row.

If the three Justices who later found the death penalty unacceptable — Powell, Blackmun, and Stevens — had voted against the death penalty in 1976, their votes, with abolitionists Brennan and Marshall, would have prevented the restoration of the death penalty and eliminated it nearly 50 years ago.