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John Paul Stevens, William J. Brennan and the Death Penalty

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Retired Justice John Paul Stevens made headlines this past weekend by explaining how he went from supporting capital punishment at the time he joined the U. S. Supreme Court to concluding it is unconstitutional.

One of Stevens' late colleagues, William J. Brennan Jr., might have felt some measure of vindication had he lived long enough to witness Stevens emerge as a forceful opponent of the death penalty. But it certainly wouldn't have surprised Brennan, who joined Thurgood Marshall as the Court's most ardent voices against capital punishment in the 1970s.

At the end of his 34-term career on the Supreme Court, Brennan confidently predicted to his clerks that both Stevens and Harry Blackmun would eventually come to view the death penalty as unconstitutional.

It is a prediction preserved in the narrative history of the 1989-90 term prepared by Brennan's law clerks at his direction. "Early in the Term, WJB had expressed his view that someday Blackmun (and somewhat less likely Stevens) would 'come around' to his view that the death penalty is in all circumstances cruel and unusual punishment," Brennan's clerks wrote.

Stevens mentions Brennan in his new essay in the New York Review of Books, which lays out why he changed his position on the death penalty. Stevens blames conservative justices for engaging in "regrettable judicial activism" that he says undermined earlier decisions making it possible to carry out executions fairly.

Stevens singled out the 1991 decision in Payne v. Tennessee in which the Supreme Court overruled a four-year old precedent barring victim statements based on concerns they tended to inflame juries. In the intervening years, two justices who supported that original position in Booth v. Maryland had left the court: Brennan and Lewis Powell.

"I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the Court," Stevens wrote in the New York Review of Books.

Stevens sounded much like Brennan during an appearance Sunday on CBS News' 60 Minutes. Asked by Scott Pelley whether it would be "best to do away with the death penalty under all circumstances," Stevens replied, "That would be the best rule to follow."

But as the Associated Press noted, the essay "glosses over Stevens' own differences with the more liberal justices William Brennan and Thurgood Marshall, who opposed capital punishment without exception and warned 35 years ago that its resumption after a roughly decade-long hiatus would pose many of the problems Stevens says have come to pass."

In a 1988 interview with my co-author, Steve Wermiel, Brennan recounted how unpredictable Stevens could be when it came to capital punishment and how he had come to rely on Stevens as a fourth vote to hear death penalty cases.

"He goes beyond Harry, boy, he really nitpicks in favor of the accused," Brennan said. "He takes very, very seriously the view that death is different and you have to treat it different. And most of the cases that we get to argue are because he makes a fourth to argue."

As Brennan predicted, Blackmun wound up coming out in favor of abolishing capital punishment first, although using different reasoning than Brennan.

In February 1994, Blackmun announced in a dissent, "From this day forward, I no longer shall tinker with the machinery of death." He added, "It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies." Four days earlier, Blackmun had stopped by Brennan's chambers to share news of his pending opinion.

Blackmun distanced himself from the approach to the death penalty taken by Brennan and Marshall in an oral history interview conducted after he retired in 1994.

"They felt the death penalty was cruel and unusual punishment under the Eighth Amendment and hence proscribed," Blackmun said. "I didn't subscribe to that. It seemed to me that the Constitution as originally written and indeed throughout the Bill of Rights recognized, shall I say, the constitutionality of the death penalty as such."

Blackmun explained that he "went along" with the death penalty during his first 20 years as a justice based on the theory "that if this is what the states wanted I guess they were entitled to have it although I didn't believe in it."

But he said he became "more and more convinced" about problems caused by "racial discrimination and inconsistency in application."

"It seemed to me that it was impossible to administer the death penalty in a constitutional manner, that is, equally applied to all those who are accused of capital crimes," Blackmun said.

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