Andrew Cohen contends that “no one who digs deeply into these grim cases ever seems to evolve from being a staunch opponent of capital punishment into being a fervent supporter of the practice.” He discusses three Supreme Court justices who changed from pro- to anti-death penalty:
The systemic problems with capital punishment that Lewis Powell mentioned in 1991, and that Justice Blackmun identified in 1994, had not been cured by the time Justice Stevens identified them in 2008 (and again in 2010, in The New York Review of Books, in a review in which he lamented the Court’s broadened application of capital punishment). Nor has the Supreme Court addressed, let alone resolved, these problems in the years since Justice Stevens retired. Just last month, the justices refused even to hear an Alabama case in which an elected judge overrode a jury’s sentencing verdict and imposed a death sentence.
Three Republican-nominated justices, three men of moderation, among the least ideological the Court has produced in the past 50 years, all came late in life to regret their early doctrinal support for capital punishment. Retired Justice Sandra Day O’Connor, the first woman on the Court, a nominee of President Ronald Reagan, also questioned the use of capital punishment near the end of her tenure on it. She had concerns about the execution of the innocence, she said, and she acknowledged the equal protection implications of the fact that rich capital defendants get better legal representation than poor ones.
Now let’s list the Supreme Court justices of our time, or of our parents’ time, who started out as advocates for the abolition of capital punishment but whose experience with capital cases on the High Court over decades caused them to support the death penalty. Alas, we can’t do it. Not a single justice has ever been so converted. Is that not telling? Exposure to capital cases doesn’t cause these smart and honorable men and women to gain confidence in the neutral and accurate application of the death penalty, because no such confidence is warranted—because no such application exists.
