Retired Supreme Court Justice: Capital Punishment ‘Shot Through with Racism’

The New York Times is reporting that retired Supreme Court Justice Stevens has written an essay that offers a devastating critique of the death penalty as “shot through with racism.”  In a detailed, candid and critical essay to be published soon in The New York Review of Books, Stevens wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”  While other justices (e.g. O’Connor and Souter) have offered some commentary since retiring, their rather abstract discussions of legal issues is, apparently, nothing like the blow-by-blow critique in Justice Stevens’ death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.  But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.  He will also be on “60 Minutes” on Sunday night.

The essay is actually a review of the 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. The book compares American and European approaches to the death penalty, and in the essay Stevens appears to accept its major conclusions.  Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.  According to the New York Times article, Stevens notes that the problems with the administration of capital punishment extend beyond the courthouse and into the voting booth.  Referring to the “race-based prosecutorial decisions” allowed by the 1987 McCleskey v. Kemp, ruling that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution, Stevens wrote:

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings.”

This bold move by a retired Supreme Court Justice is good news for those concerned with the injustice of capital punishment.


  1. marcg

    Frustrating to see yet another analysis that pegs the US’ love affair with the prison industrial complex and the death penalty specifically as a product of a ‘cultural fascination with violence and death’. Meaningless!

    I guess you can’t get published unless you can sufficiently explain white supremacy as something superfluous and mystifying.


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