I'm not a regular reader of The New York Review of Books, but I wasn't going to miss newly-retired Supreme Court Justice John Paul Stevens's essay on capital punishment in the latest issue. Last Sunday, in a Page 1, above-the-fold story, The New York Times spotlighted the Stevens piece as a "candid" and "remarkable" piece of writing that finally settled a "legal mystery" -- namely, why Stevens had changed his original view on the death penalty, and announced in 2008 that he now considered it to be unconstitutional.
Whether Stevens's metamorphosis was in fact such a "mystery" is debatable. A moderate Republican when he was appointed by President Ford in 1976, Stevens had long since migrated to the other side of the ideological divide. By the mid-1980s he was already voting more often than not with the court's liberal bloc, and by 1994, to quote The New Yorker's legal-affairs writer Jeffrey Toobin, Stevens had "become the undisputed leader of the resistance against the conservatives on the Court." Capital punishment was just one of many issues -- racial preferences, gay rights, free speech, church/state separation -- on which Stevens came to champion staunchly liberal positions. Well before the 2008 concurrence in which he proclaimed the death penalty to be a violation of the Eighth Amendment in all cases, his growing opposition to executions was evident.
That opposition is restated in Stevens's new essay, a mostly positive review of a new book, Peculiar Institution: America's Death Penalty in an Age of Abolition by David Garland, a professor of law and sociology at New York University. Early in his study, Garland cites the view of "many commentators" who "view contemporary capital punishment as a continuation of the nation's history of racial violence and lynching" -- an inflammatory view with which Stevens appears to concur. The former justice echoes that language in writing about the 1987 case of McCleskey v. Kemp, a 5-to-4 decision in which the court upheld a murder conviction and death penalty even though academic research proved that sentences of death were more common when the murder victim was white.
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