In his latest book, Six Amendments: How and Why We Should Change the Constitution, retired United States Supreme Court Justice John Stevens reminds us why some of the most frustrating judges are the ones who have left their courts behind….
For example, a man who consistently upheld capital convictions and the death penalty itself for over 35 years, who helped send hundreds of men and women to their deaths by failing to hold state officials accountable for constitutional violations during capital trials, who more recently endorsed dubious lethal injection standards because he did not want to buck up against court precedent, now wants the Eighth Amendment to read this way, with five new words added:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted….But they are essentially the same words uttered famously, for essentially the same reasons, by another moderate Republican appointee, Justice Harry Blackmun….
Now compare Justice Blackmun’s cri de coeur with the words of Justice Stevens, in the aforementioned lethal injection case, Baze v. Rees, decided in 2008. In a concurrence in that case, after a lengthy critique of capital punishment rules and Kentucky’s lethal injection plans, Justice Stevens wrote:
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. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).
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