TCS Daily

The "Moderate Republican" Death Penalty Values of Justice Stevens - Part 1

By Lester Jackson - May 5, 2010 12:00 AM

NOTE: Page numbers and footnotes in brackets refer to documentation in the detailed paper downloadable here; those in parentheses refer to all other linked sources.

Retiring Justice John Paul Stevens has long been the object of adulation. In 2005, President Ford said he was prepared for his presidency to be judged "exclusively" upon Stevens' 30-year record. In the dominant media narrative, Stevens is just an old-fashioned and modest conventional Midwestern Republican, as was Ford. If he moved left at all, he is still "in the mainstream." Jeffrey Toobin reverentially suggests he is "the last" moderate Republican on the Court and in the tradition of Harding and Coolidge.

But how many moderate Republicans and, indeed, how many Democrats would agree with his values if the media revealed them? This would be unimportant if judges merely applied the law to case facts. Those familiar with the courts know this carefully cultivated image is a myth. In the guise of applying the law, not all but very many judges impose their personal morality upon society.

Stevens (14) and his colleagues repeatedly have substituted their death penalty values for those duly enacted [36]. In their view, these judicial high priests are morally superior to the rest of democracy's mere mortals. (By contrast, Justice Scalia, often caricatured as undemocratic and the Court's "bad boy," avers (1000-01) that judges do not have (1, 5) superior moral values and should not undemocratically foist them on the rest of us.)

Despite the claim that Stevens, selected over Robert Bork, was a conservative who "evolved" on capital punishment, his death penalty values were clear from the outset: murderers and rapists are much more important and deserving of sympathy than their victims, who should not be heard or even noticed. Save the lives of guilty murderers and rapists, even if this assures new and avoidable rapes and murders of innocent victims.

Are those the prevailing values of our society?

Stevens did not always side with violent criminals or join Brennan and Marshall in voting to overturn every death sentence [4, 36]. Appointed after a 35-state reaction against the Court's unpopular 5-4 epiphany that previously upheld existing capital punishment was unconstitutional [29, 37], he employed a more politic - and successful - strategy: patiently pursuing "boil the frog" abolition [37, 43; n283], seizing every chance to achieve his stated "narrowing" goal [n250]. If capital punishment could not be completely abolished, almost completely would suffice [43].

Just six months after assuming office, Stevens co-authored joint opinions upholding three watered down death penalty laws while striking down two strong mandatory versions. Contrary to a Stevens acolyte, it is false that his vote was "essential" to restoring capital punishment. The upholding judgments were 7-2 votes and those nullifying were 5-4. One can only speculate if Stevens would have voted to uphold the three had he two more votes. By often voting with a majority where his vote would make no difference, this recognized master strategist could appear open minded while making his votes count when they mattered. There are very few, if any, 5-4 decisions where Stevens voted to uphold or proceed with a death sentence (i.e., where his vote was decisive). Also, he asserted (173, 182) power to inflict five justices' death penalty values upon everyone else (acceptability to contemporary society not enough; public's standards of decency "not conclusive" [36; n243]). Ever since, whenever at least four other justices joined him (or he them), he has been "narrowing." (That he had their support does not make his values or theirs "moderate.")

Stealthily [43], these justices have virtually abolished capital punishment in two broad ways:

  • (A) Entire categories of barbarity and barbarians have been declared "death ineligible," e,g.,: "adult" rape [nn98, 265], "child" rape [13-16], recidivists who commit new violence while under life sentence [42; n265], supposedly routine murder [nn32, 288], felony murder [11], alleged retardees [11-13], 17-year-olds who proudly commit premeditated torture and murder [7-8].
  • (B) The system has been tied in knots [29-31, 48; nn187, 313], making the process costly and lengthy [26], often decades-long [47-50; n16], with repetitive and endless appeals where guilt is not in doubt [3; nn12, 109]; e.g.: (1) it took 8 years to execute Paul Powell after he sent the prosecutor a detailed letter boasting of rape-murder; (2) 36 years after sending his murder victim's mother a tape voicing his enjoyment, Jacob Dougan is still on death row.

15 months on the court, Stevens regurgitated a favorite banality of murderers' advocates. He joined a 5-4 majority to possibly free Robert Williams, about whose guilt of murdering 10-year-old Pamela Powers there was no doubt. But he separately objected to the dissenters' "strong language" and endorsement of State "dishonor," adding:

Nothing that we write, no matter how well reasoned or forcefully expressed, can bring back the victim ...The emotional aspects of the case make it difficult to decide dispassionately. [Emphasis added.]

So if we can't help the victim, the least we can do is help the murderer. "Dispassion" means ignore the dead victim (and still living family) and, if a fig leaf can be found, free the murderer to potentially create new victims.

Away from Williams' lawyer, a detective engaged in what five justices labeled an "interrogation (410)," which, upon inspection, turns out to be a statement without a single question mark (392-393). He urged Williams to think about enabling the parents to give their little girl a "Christian burial" at Christmas time. Williams produced the body. When a mere suggestion appealing to a miscreant's conscience is deemed coercion requiring exclusion of critical evidence, we can appreciate the mockery made of protections intended against the rack-and-screw, rubber hose and Star Chamber. Chief Justice Burger objected (417) to this 5-4 "sporting theory of criminal justice."

When the Court later reversed itself, Stevens wrote an angry 2,611-word "concurrence," complaining of "an unusually clear violation of constitutional rights" and excoriating the detective. Justice White responded with 200 words. Rarely has bloviating verbosity been punctured with such trenchant brevity:

... Stevens' remarks are beside the point ... four [justices] ... were of the view that Detective Leaming had done nothing wrong at all, let alone anything unconstitutional. Three of us observed: "... the result in this case seems utterly senseless ..." ... It is ... unjustified ... to say [Leaming] "dispense[d] with the requirements of law," ... He was no doubt acting as many competent police officers would have acted ... in light of the then-existing law. That five Justices later thought he was mistaken does not call for making him out to be a villain or for a lecture on deliberate police misconduct ....

The Unmentionables. In a 2007 dissent (n1) he took the rare step of reading (36) from the bench, Stevens objected to the court opinion's "irrelevant ... graphic description of the underlying facts" of brutal crimes, "perhaps ... to startle the reader or muster moral support." The whole "graphic description" was 28 words saying Cal Brown had "robbed, raped [and] tortured" two women, with one attempted and one successful murder [1-2]. Clearly, Stevens wanted no mention of the crime at all - there was no "graphic description" of any of the truly horrific "underlying" facts [2-3]. He wanted no reader to suspect the case involved terrified victims who endured excruciating lengthy agony.

Throw the Victims Out of Court. In 1978 and 1982, with Stevens' full support, the court declared that a convicted murderer could introduce any "mitigating" evidence whatsoever to show why he should be kept alive. This included not only the expectable (e.g., unhappy and impoverished childhood), but evidence that a murderer not only had bad parents but even that his mother (2) imbibed alcohol while pregnant (16) with him, he allegedly "got religion"(3) or won a dance contest (n5). (It does not matter that almost no one with a bad childhood commits murder.)

To redress the court-created imbalance in favor of convicted murderers, laws were enacted allowing "victim impact" evidence at sentencing hearings, to "humanize" victims as well as their murderers. In 1987, the court declared these laws unconstitutional, but reversed that decision four years later, to Stevens' vehement consternation.

A major distinction between the "moderate" justice and one who is not is that the former thinks it moral, just and fair to allow, indeed mandate, introduction of any and all evidence to create sympathy for a murderer as a unique individual while at the same time turning the victim into a "faceless stranger (825)." Stevens has never accepted, as valid for sentencing convicted murderers, evidence about victims and all the harm done to them [n27]. Having objected to bare mention of the crime even in Supreme Court opinions, his view (856) is that victim impact evidence "sheds no light on the defendant's ... moral culpability." The "immoderate" disagrees (825). Stevens later declared (7) it "troubling ... to rouse sympathy for the victims and increase jurors' antipathy" for convicted murderers.

Stevens was also "troubled" by the 1943 "targeted assassination," "with so little apparent deliberation or humanitarian consideration," of Admiral Yamamoto, architect of the Pearl Harbor massacre and head of a navy still killing Americans. Stevens says his resolve to "narrow" capital punishment was prompted by thinking of this "particular individual... a highly intelligent officer who had lived in the United States and become friends with American officers...." Nary a word that this "particular individual" had himself "targeted" myriad dead and maimed Pearl Harbor victims "with so little ... humanitarian consideration."

That, then, is the media's idea of a "moderate" Republican: "humanizing" for a very smart man with American friends but not for the thousands whose deaths he meticulously planned; sympathy for vicious murderers with resistance to whatever might create sympathy for their victims.

Victims Who Aren't Victims. Stevens does not consider as victims traumatized, suffering and ruined people. He refers (1) to "so called 'victim impact evidence'" - a "misnomer" since impact is only on "third parties, usually members of the victim's family." Of course, the death is known to a jury that convicts a murderer. But beyond that, there should be no mention of the "particular individual" lost lest there be sympathy for the victim; and the loss suffered by the living doesn't count because they are mere "third parties," not victims too. Stevens was oblivious to the agony of, e.g., the loved ones of Sherry Byrne, whose slaughter "ruined the lives of everyone close to her."

Creating Future Victims. Finally, Stevens (and death penalty subverting colleagues) also appears unconcerned that rescuing convicted murderers causes new and avoidable murders of innocent victims [42-44].

Continued in Part 2...

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