ILNews

Views shift on use of executions

Back to TopCommentsE-mailPrintBookmark and Share
Cost of Justice

What if 1976 hadn’t played out the way it did, and some of the jurists on the U.S. Supreme Court had held the view of capital punishment at that juncture that they did at the end of their judicial careers?

The death penalty may never have been reinstated.

That changing judicial perspective is making its mark on the continued evolution of the death penalty debate.

stevens-john-paul-mug.jpg Stevens

“This has all been a long experiment since the death penalty came back, and we’re all still working it out,” said Richard Dieter, executive director of the non-profit Death Penalty Information Center in Washington, D.C., that studies capital punishment. “Even if it’s theoretically constitutional and you get past the moral questions, many are seeing that in practice through the years (this system) lacks protections or predictability and just isn’t worth it.”

One of the most visible examples of this judicial change of heart comes from Justice John Paul Stevens, who hails from the 7th Circuit and retired from the Supreme Court of the United States in 2010 after 35 years. In 1976, after six months on the bench, Justice Stevens voted to bring back the death penalty because of what he saw as “a promise” of evenhanded justice and careful consideration of that penalty.

The case was Gregg v. Georgia, 428 U.S. 153, 206-07 (1976), one of five companion cases that was at the time considered the test for whether the death penalty could be reinstated nationwide following a 1972 5-4 ruling that had struck it down. Many states, including Indiana, had revised state laws concerning capital punishment, and Justice Stevens and six of his colleagues voted that the death penalty was constitutional with the right procedures and narrow, equitable application.

But 32 years and more than 1,000 executions later, Justice Stevens reversed course. Now retired, he says that he regrets his vote in Gregg and would have made a different decision if he knew what was ahead.

In the 2008 Kentucky lethal injection case of Baze v. Rees, 553 U.S. 35 (2008), Justice Stevens concurred with the use of lethal injection but wrote separately to explain his overall concerns with the death penalty. He wrote that the case questioned the justification for the penalty itself, and he stressed concerns about the process that often relies on emotion and ends with inconsistent result.

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” Justice Stevens wrote. “A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Following his retirement, Justice Stevens explained further his rationale and the historic perspective behind his change of heart. He wrote an essay that appeared in the “New York Review of Books,” reviewing a law professor’s book on capital punishment and explaining his reasoning.

He wrote that personnel changes on the court and “regrettable judicial activism” that chipped away at the foundation of the 1976 rulings were significant reasons for his shift, and that in his time on the bench the capital punishment system has become error-ridden, skewed toward conviction, and weighed down by political concerns of those involved in the decision-making on death. He wrote about how elections affect decisions of state prosecutors and judges who impose it, and said there has been a tilting of the playing field toward conviction because prosecutors often exclude jurors with qualms about the death penalty.

In the essay, Justice Stevens wrote that legislative imposition of death eligibility must be rooted in benefits for at least one of five classes affected by capital offenses – victims, survivors, legal community participants such as attorneys and judges, the general public, and the accused who would ultimately be condemned. The system doesn’t provide adequate justification for those parties, except for the survivors, but that can’t be taken alone, he wrote.

Justice Stevens joins other former justices whose views have altered since their time on the court. Former Justices Lewis F. Powell and Harry Blackmun, who retired in 1987 and 1994 respectively, switched their views and completely repudiated capital punishment, while Justice Stevens had continued to uphold those sentences when he believed that the court’s precedents led to that conclusion.

All three were part of the 7-2 majority reinstating the death penalty in 1977.

dieter-richard-mug.jpg Stevens

“Over their years on the court, they begin to see how the system often fails to provide even minimal due process,” Dieter said. “Although they may not feel empowered to overturn the death penalty until there is a national consensus against it, they recognize they can at least improve the justice system by requiring better representation, demanding unbiased jury selection, and explaining to judges what the law is.”

Statewide judicial view

From the Indiana Supreme Court perspective, former Justice Theodore Boehm, who left the bench in September 2010, doesn’t go into how his personal views changed over time but says as a judge he tried to be as consistent as possible in every death penalty case before him.

“As a judge, this is a legislative matter to decide on whether we should have it or not,” he said. “If it’s in place and constitutional, then it’s our job to administer – whether one thinks it’s wise or not.”

Clues about the five justices’ own judicial philosophies can be found in the published writings and rulings they’ve made through the years. The two most often aligned in dissenting on death and vocal about their views on the capital punishment system have been Justices Boehm and Robert Rucker.

No death penalty case has been decided by the Indiana Supreme Court since Justice Boehm retired Sept. 30 and Justice Steven David joined the bench. Justice David, a former Boone Circuit judge, has a unique perspective on death penalty cases. In his previous work as a judge advocate general, he served as the Office of Military Commissions’ chief defense counsel who attended American Bar Association death penalty training courses and helped build teams of military defense attorneys to handle complicated capital cases.

In May 2005, he presided over the case of Zolo Agona Azania, convicted in 1982 for murdering a Gary police officer. His death sentence had been overturned twice. The case went back for a third sentencing and then-Special Judge David ruled that too much time had lapsed and deprived the man of his constitutional rights, and he barred prosecutors from seeking a death sentence again.

According to the judge, “Fundamental principles of fairness, due process, and speedy justice warrant this court prohibiting the state to seek the death penalty against this Defendant in this case under these circumstances.”

The Indiana Supreme Court reversed that ruling in 2007, with Justices Rucker and Boehm dissenting. The case went back for a new trial, but a year later a plea agreement emerged that resulted in a largely suspended 44-year sentence for murder and robbery – meaning after time served Azania could be released by 2015.

Attorneys and judges who watch the capital punishment system say they are interested in seeing how the state Supreme Court’s newest addition impacts its death penalty decisions. But fewer filings and subsequent appeals mean the court has less opportunity to provide that guidance.

On the national stage, Dieter says costs of this system are contributing to the gradual execution of the death sentence.

“As former Justice Marshall predicted, the more people and fellow justices who learn about how it works in practice, the more likely they are to oppose it,” he said. “If it weren’t for the perceived political advantage to supporting the death penalty, it would probably be gone by now.”•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT