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Justice John Paul Stevens Talks Death Penalty, Citizens United, New Memoir

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JUSTICE STEVENS
AP

WASHINGTON -- Supreme Court Justice John Paul Stevens sat in his chambers Monday afternoon as his former colleagues -- and his successor, Justice Elena Kagan -- were behind closed doors on the floor below, spending the day digging out from the backlog of petitions for their review that had built up over the summer recess.

"I must say I'm enjoying the retirement and enjoying the fact that I don't have to do all the preparation that goes into getting ready for the next term," the 91-year-old retired justice said with a glimmer in his eyes during an interview with The Huffington Post.

But as anyone who has followed Stevens since his June 2010 retirement knows, he has kept up a work ethic and travel schedule that hardly befits a nonagenarian retiree.

Last November he published an essay in the New York Review of Books reminding readers of his late-career abandonment of all hope for the death penalty's constitutionality. In a speech in May, he scolded the Court's five-member conservative majority for overturning a wrongly imprisoned man's jury award of $1 million for each of the 14 years he spent on death row due to prosecutorial misconduct. A week and a half later, he publicly criticized the Court's decision finding the Westboro Baptist Church's military funeral protests are protected by the First Amendment, siding instead with Justice Samuel Alito's lone dissent. To cap things off, in yet another speech, Stevens offered his opinion that Osama bin Laden's killing was carried out within the bounds of the law.

And next week, he is coming out with "Five Chiefs," a "Supreme Court memoir" that reflects upon over six decades of the Court's history through the lens of Stevens' own relationships with the presiding chief justices during that time. In the book, he is liberal with both praise and criticism of his chiefs, and takes particular issue with conservative victories in death penalty and campaign finance cases.

It's clear that on both issues, Stevens' first year on the bench during the 1975-'76 term made a lasting impression on him. In 1976, he, along with Justices Potter Stewart and Lewis Powell, provided the controlling opinion for the cases that re-instituted the death penalty in the United States after the Court struck down all capital punishment laws four years earlier.

According to Stevens, his vote to reinstate the death penalty was based on his belief that the states "had narrowed the category of death-eligible offenses and would enforce procedures that would minimize the risk of error and the risk that the race of the defendant or the race of the victim would play a role in the sentencing decision."

But after three decades of watching his increasingly conservative colleagues approve laws that abrogated his hope for a fairer process, he has come to see the death penalty as "pointless and needless."

Stevens made clear to HuffPost that he does not hold out much hope for the Court to see it his way anytime soon. On the Court's denial of a stay of execution for Troy Davis last week, Stevens "can't say that the Court misapplied the law in any way." But the case still unsettles him. "It's an example of cases in which there's some -- perhaps remote -- possibility of error, and whenever there's error in a death case, you cannot be very happy about that particular penalty."

While his death penalty views changed over time, Stevens writes in "Five Chiefs" that his "extreme distaste for debates about campaign financing" -- born of reading his new colleagues' wrangling in the seminal 1976 case Buckley v. Valeo -- "never abated."

Because he arrived on the Court after the justices had already heard oral arguments in the Buckley case, he did not participate in his colleagues' deliberations. But he nevertheless felt obligated to keep up with the "seemingly endless parade of writings that my new colleagues circulated."

The end result, Stevens reminds us, was 294 pages of fractured opinions that, in his view, arbitrarily distinguished between contributions and expenditures, upholding federal limits on the former and striking down caps on the latter. Even under the majority's holding that spending money in elections is a form of political speech protected by the First Amendment, Stevens finds "nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means."

Stevens notes in his book the prescience of Justice Byron White's prediction in his Buckley dissent that without limits on total expenditures, "campaign costs will inevitably and endlessly escalate."

A generation later, when the Court in Citizens United v. Federal Election Commission held that any limits whatsoever on independent expenditures violated the First Amendment, it was Stevens' turn to deliver a jeremiad. For 20 minutes he spoke in open Court, railing against the five-member majority's overturning of the Court's decision just seven years earlier to uphold the same federal laws it now declared unconstitutional.

Along the way, he tripped over a couple of words, sparking some speculation about his fitness to remain on the bench. It turns out he, too, was alarmed -- Stevens decided soon afterward to retire at the end of that term.

Yet given his career-long struggle with the Court's campaign finance precedents, it makes sense that Stevens stumbled over a couple of words as he spewed out 34 years worth of distaste. In his chambers Monday, he was not surprised by the news of the rise of super PACs committed to spending hundreds of millions of dollars in the 2012 election cycle.

Assuming Justice White's role as prophet of the obvious, Stevens cited his swan song: "There's nothing about what has happened that is inconsistent with what I suggest in my dissent might happen."

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