CRF Blog

Justice Stevens On The Death Penalty

by Damon Huss

In the recent New York Review of Books, former U.S. Supreme Court Justice John Paul Stevens reviews Irving Morris’ The Rape Case: A Young Lawyer’s Struggle for Justice in the 1950s. An interesting side note is that Morris was once Stevens’ attorney in the 1960s in a corporate lawsuit.

The book recounts a harrowing tale of a 1947 rape accusation against three men in Delaware. At that time in Delaware, rape was a capital offense. This case involved a procedural misunderstanding by the jury foreman that nearly led to an automatic death sentence for the defendants. It also involved police perjury at trial and an appeal based on the effect that perjury may have had on the jury in delivering a guilty verdict. Morris represented the defendants on appeal.

All this leads Justice Stevens to reflect:

Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits, as Justice Lewis Powell, Justice Potter Stewart, and I explained in our joint opinion in Gregg v. Georgia (1976). We wrote that capital sentencing procedures must be constructed to avoid the random or capricious imposition of the penalty, akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors — which is not subject to review — to seek a sentence of death. It is a discretionary call that may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office. [more]