John Paul Stevens's One Regret: Upholding The Death Penalty


Over an almost 35 year Supreme Court career, now retired Justice John Paul Stevens said recently that the lone vote he regrets is one that he cast to restore the death penalty in 1976.

Less than a year into his Supreme Court judgeship, Stevens sided with the majority decision in Gregg v. Georgia a case that served to overrule a temporary stay in capital punishment enacted by Furman v. Georgia in 1972.

Three and a half decades later, Stevens spoke with NPR about that particular vote and the misgivings he had about his opinion in the case.

From NPR's report:

"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."

According to NPR, Stevens described the bending of the court toward capital punishment as a function of an increasing number of "hard-line conservative justices" who broadened the applicability of the death penalty.

"Not only is it a larger universe, but the procedures have become more prosecution-friendly," Stevens told NPR.

Practices such as allowing prosecutors to screen jurors who could potentially be opposed to giving the death penalty, as well as the approval of emotionally-charged testimony from the families of victims during the sentencing phase of trials have all "load[ed] the dice in favor of the prosecution and against the defendant," Stevens told NPR.

Though Stevens did also vote with the majority in Baze v. Reese, a Kentucky decision that upheld the death penalty by lethal injection in 2008, he called his vote in Gregg "the one vote I would change." According to NPR, Stevens described his vote as "incorrect," and claimed the 1976 court "did not foresee how it would be interpreted."

"I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing," Stevens said. "And I think if the procedures had been followed that we expected to be in place, I think I probably would've still had the same views."

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