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Views shift on use of executions

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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.”•
 

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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