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C HANGE
OF H EART —
JUSTICE STEVENS REASSESSES THE
DEATH PENALTY
Jeffrey Bleich, Aimee Feinberg, Michelle Friedland,
Daniel Bress, and David Han
n April 16, the Supreme Court handed
down one of the most anticipated opinions of the past term. In Baze v. Rees,
the Court addressed the question of
whether Kentucky’s administration of a
three-drug lethal injection “cocktail” for executions—a
protocol currently used by thirty states and the federal
government—constitutes cruel and unusual punishment
under the Eighth Amendment. In a fractured 7–2 decision, the Court upheld the procedure against the constitutional challenge.1
O
Given the widespread use of the lethal injection protocol
challenged in Baze, the significance of Baze’s holding to
the practice of capital punishment in the United States is
apparent. But Baze is significant for another reason, one
related only marginally to the central dispute in question.
In his opinion concurring in the Court’s judgment, Justice
John Paul Stevens wrote: “I have relied on my own experience in reaching the conclusion that the imposition of
32 FALL 2008
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.’” Stevens’s opinion marks the first time in
more than a decade that a sitting justice has declared that
imposition of the death penalty itself is unconstitutional.
Even to the most avid of Supreme Court observers,
Stevens’s pronouncement came as a surprise. It marked a
startling about-face for a justice who, more than thirty
years ago, cast one of the deciding votes in Gregg v. Georgia, the 1976 case that ended the moratorium on death
sentences that the Court had established six years earlier in
Furman v. Georgia. In the years following Gregg, Stevens
had on multiple occasions voted to affirm death sentences
and had voted to deny innumerable stays of execution.
While recent comments—such as his statement, in a 2005
speech to the American Bar Association, that “a substan-
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tial number of death sentences have been imposed erroneously”—indicated Stevens’s growing discomfort with
capital punishment, his full-scale rejection of the death
penalty’s constitutionality was still hardly foreseeable. After
all, he had long resisted the arguments against the constitutionality of the death penalty set forth by Justice Thurgood Marshall and Justice William J. Brennan, Jr., during
their tenure on the Court.
Stevens’s pronouncement was even more surprising in light
of the context in which it was made. Baze dealt solely with
one particular mechanism of effecting the death penalty,
and the case’s outcome rested, in large part, on an evaluation of the scientific and empirical evidence surrounding
the administration of the three-drug lethal injection protocol. It was certainly not an obvious vehicle for exploring
the theoretical rationales underlying the constitutionality
of the death penalty itself. That Stevens chose this case—
The similarities between Blackmun’s and Stevens’s pronouncements are striking. Like Stevens, Blackmun had
voted to reinstate the death penalty in Gregg v. Georgia and
had subsequently voted to affirm death sentences on multiple occasions. Like Stevens, Blackmun made his pronouncement in the context of an unexpected vehicle: in
dissent to an otherwise unexceptional denial of certiorari
and stay of execution (a denial of the sort that had become,
for better or for worse, part of the Court’s daily routine).
And like Stevens, Blackmun had long resisted the arguments of Marshall and Brennan against the constitutionality of the death penalty before his change of heart.
Perhaps most intriguing, both pronouncements came after
the justices had served on the Court for many years. At
the time of Callins, Blackmun was eighty-six years old and
had served on the Court for twenty-four years; he would
retire less than six months later. Similarly, Stevens, at the
Stevens’s opinion marks the first time in more
than a decade that a sitting justice has
declared that imposition of the death penalty
itself is unconstitutional.
rather than, say, Kennedy v. Louisiana, a case argued
later in the same term that addressed the scope of the
death penalty—adds to the mystery surrounding
the pronouncement.
But while Stevens’s change of heart regarding the constitutionality of the death penalty may have been surprising, it
was certainly not unprecedented. Fourteen years ago, in a
1994 opinion dissenting from the denial of certiorari in
Callins v. Collins, Justice Harry Blackmun wrote: “From
this day forward, I no longer shall tinker with the machinery of death. . . . It is virtually self-evident to me now that
no combination of procedural rules or substantive regulations can ever save the death penalty from its inherent constitutional deficiencies.”
time of Baze, was eighty-seven years old and had served
on the Court for more than thirty-two years. Both justices
emphasized the significant effect of their long experience
on the Court on their respective decisions. Blackmun
wrote: “For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this
Court, to develop procedural and substantive rules that
would lend more than the mere appearance of fairness to
the death penalty endeavor.” Similarly, Stevens stated that
“just as Justice [Byron] White ultimately based his conclusion in Furman on his extensive exposure to countless
cases for which death is the authorized penalty, I have relied on my own experience in reaching [my] conclusion.”
Exactly what role might experience have played in the justices’ respective decisions? The answer may well rest on an
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oft-overlooked aspect of the justices’ jobs. The Court receives a last-minute application for a stay of execution for
nearly every execution in the United States; at times, the
Court will receive one or more of these applications each
day. Each justice must vote on the application prior to the
execution, and the process often stretches (literally) into
the eleventh hour and beyond—some West Coast executions, for example, may be scheduled as late as 2 a.m. Eastern time, and the papers are sometimes filed immediately
before the time of execution. While the vast majority of
these applications are denied, the Court will occasionally
intervene where the issue raised by the capital defendant is
deemed appropriate, or potentially appropriate, for certiorari review.
Each justice, during the course of a term, will likely have
reviewed scores of stay applications from capital defendants; indeed, in many cases, the last thing the justice will
do before going to sleep at night is to vote on such an application. One could surmise that for at least some of the
justices, this process is incredibly wearying on a mental and
spiritual level. Justices must constantly review capital cases
that are often based on heinous and horrifying criminal
acts. At the same time, they likely encounter a number of
close cases where, despite a Court vote to deny a stay application, they retain some doubt as to whether the Court’s
decision to allow the execution to proceed was correct.
At the time of their respective pronouncements, both
Blackmun and Stevens had reviewed hundreds, if not
thousands, of these stay applications. It may be that the
justices, having seen so many indeterminate shades of gray
in this multitude of capital cases, simply lost confidence
in the judiciary’s ability to draw clear lines as to where capital punishment is constitutionally permissible. Or maybe,
on a more visceral level, it was simply the weariness borne
from constant exposure to the horrors of capital crimes and
the utter finality of executions that led these justices to fi-
34 FALL 2008
nally renounce any desire to “tinker with the machinery of
death.” In any event, it is clear that extensive exposure to
capital cases during their long tenures on the Court eventually led both justices to a different perspective on the
issue—a perspective that they may not have grasped as relatively junior justices in 1976.
For all of the similarities between the two pronouncements, however, one significant difference stands out: the
justices’ respective choices of tone and language. Justice
Blackmun’s opinion often adopts a visceral and dramatic
tone rarely seen in a Supreme Court opinion; for instance,
the opinion begins with a highly dramatized description
of Callins’s execution: “The witnesses, standing a few feet
away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney,
and seconds away from extinction.” Even more striking is
the uniquely personal tone that Blackmun takes throughout the opinion. Although grounded in legal doctrine, the
opinion ultimately reads less like a sober legal analysis than
a personal apologia penned by one seeking to justify his
past actions. Both of these tonal strands are encapsulated
in the final lines of the opinion, which combine a stinging
rebuke of the Court with a sobering reference to Blackmun’s own mortality: “I may not live to see that day [when
the Court deems the death penalty unconstitutional], but
I have faith that eventually it will arrive. The path the
Court has chosen lessens us all. I dissent.”
Stevens’s opinion, on the other hand, is far more modest in
tone and content. Stevens lays out and explains, in systematic fashion, three basic reasons for his conclusion: the erosion of the traditional rationales underlying the death
penalty, the absence of sufficient procedures to protect the
rights of capital defendants, and the irrevocable nature of
the penalty in the face of a strong possibility for error. Unlike Blackmun, he does not seek to justify or explain his
prior voting record, nor does he rely on visceral imagery or
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dramatic indictments of the Court’s actions. In fact,
Stevens’s ultimate conclusion is not even stated in his own
words. Rather, he simply adopts Justice White’s statement
in Furman that “[a] penalty with such negligible returns to
the State is patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” This comparatively modest tone is further underscored by the fact
that Justice Stevens eventually concurs with the Baze
Court’s judgment on the basis of stare decisis alone.
One who is inclined to speculate could read volumes from
the very different tones taken by the two justices. At times,
Blackmun’s opinion reads like a personal confession from
one finally releasing himself from a long-held burden.
That Blackmun announced his imminent retirement from
the Court a mere two months after Callins thus should
not have come as a shock; Callins was, on its face, a selfconscious valedictory marking the end of a long judicial
career. By contrast, Stevens’s Baze opinion is, at its heart,
a straightforward legal analysis framed by what Stevens
deemed to be changed circumstances: the breakdown of
traditional rationales supporting the death penalty, the
Court’s failure to erect sufficient procedural protections
for capital defendants, and the growing realization that
capital cases may be infected by significant error. There is
no exorcising of personal demons or bridge-burning excoriations of the Court in the opinion—only a recognition, on Stevens’s part, that his position on the death
penalty must necessarily evolve. On this basis, it may ultimately be inaccurate to read Stevens’s Baze opinion as
simply a latter-day recurrence of Blackmun’s pronounce-
ment in Callins. Stevens’s opinion is no confessionary coda
marking the end of a long career—it is the statement of
one who, even after thirty-two years on the Court, remains
vitally engaged with his duties as a justice and recognizes
that those duties may sometimes require a reevaluation of
one’s longest-held beliefs.
Note
1. Munger, Tolles & Olson filed an amicus brief in support of
the petitioners in Baze on behalf of a group of clinical care
providers and clinical ethicists.
The authors are litigators at Munger, Tolles & Olson LLP in
San Francisco, and all previously clerked at the U.S. Supreme
Court. Jeff Bleich clerked for the late Chief Justice William H.
Rehnquist in the 1990 Term and lectures on constitutional
law at UC Berkeley Boalt Hall School of Law. He is the
2007–2008 president of the State Bar of California. Michelle
Friedland clerked for Justice Sandra Day O’Connor in the
2001 Term and has taught federal jurisdiction at Stanford
Law School. Aimee Feinberg clerked for Justice Stephen Breyer
in the 2004 Term, Dan Bress clerked for Justice Antonin
Scalia in the 2006 Term, and David Han clerked for Justice
David Souter in the 2006 Term.
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