By Alan Bean
Retired Supreme Court justice John Paul Stevens was never enthusiastic about the death penalty. Like a lot of Americans, he believed that some violent crimes are so horrific that capital punishment is the only appropriate response. This abstract support for ultimate penalty was rooted in the assumption that the American criminal justice system is capable, first, of restricting capital prosecution to the very worst sort of crime, and, second, that with a man’s life at stake, jurors would hold prosecutors to the highest evidentiary standard: proof beyond a reasonable doubt.
Justice Stevens is still outraged by egregious acts of wanton violence, but he no longer trusts prosecutors to single out the very worst crimes for capital prosecution. Moreover, he realizes that, in far too many cases, the more shocking the details of a crime, the lower the evidentiary standard becomes. The intense desire to see justice done in a particular case easily trumps human reason and the principle of equal justice under law. This is particularly true, Stevens discovered, when the defendant is black and the murder victim is white.
Stevens was deeply disturbed by a 1987 study showing that, in the state of Georgia, defendants charged with killing white people were eleven times more likely to get the death penalty than those with black victims.
In a thoughtful review of John Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition published in the New York Times Review of Books, Justice Stevens explains his growing aversion, not to the death penalty as an abstract concept, but to the way it is actually practiced in America. Garland argues that, in 1972, the Legal Defense Fund’s argument for abolishing the death penalty presented in the watershed case, Furman v. Georgia was built on the assumption that most Americans were opposed to capital punishment. For a brief moment, they were. In 1966, for instance, a slim plurality of Americans told pollsters that they opposed the death penalty. The Furman case led to a moratorium on capital punishment that ended in 1976, partly because support for the death penalty began to soar in the mid-1970s and continued its upward trajectory until the early years of the Clinton administration.
Stevens summarizes David Garland’s argument with apparent approval: “Attacks on Furman, like the related vigorous and continuing criticism of liberal Warren Court decisions protecting the rights of criminal defendants and minority voters, were an important part of the Republican Party’s ‘Southern strategy.’ The history of racism in the South partly explains the appeal of the ‘states’ rights’ arguments that helped move the ‘solid South’ from the Democratic to the Republican column in national elections.”
Garland asks why Americans have shown such staunch support for harsh penalties during the past forty years, a question that obviously concerns Stevens as well. Anti-civil rights backlash is only part of the explanation. Garland points out that the death penalty was repealed in England and other European nations in the wake of the Second World War even though the practice enjoyed wide public support. Leading authorities, chastened by the carnage of war, considered executions barbaric and the politicians followed suit. In America, however, politicians, judges and prosecutors were far more dependent on public approval than their European counterparts. When tough-on-crime sentiment swept the nation in the 1970s and 80s, politicians (and in America judges and district attorneys fall into that category) frequently wore their love of capital punishment like a badge of honor.
Justice Stevens didn’t expect to see this blatant political pandering extend to the Supreme Court, but he was sorely disappointed. As he looked on, the Supreme Court expressed its support for “death qualified juries” from which opponents of the death penalty were virtually excluded. Then the Court allowed prosecutors to use victim impact testimony designed to inflame jury deliberations. These changes, coupled with a refusal to reserve the death penalty for a handful of truly outrageous murders, made it far more likely that emotion and prejudice would influence jury deliberations.
In a well-written article in the New York Times, Adam Liptak offers an accurate summary of Stevens’ argument: “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.”
Stevens is particularly troubled by cases in which the death penalty is sought even though the evidence is circumstantial and fraught with ambiguity. “While support of the death penalty wins votes for some elected officials,” he writes, “all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs (which Garland estimates are at least double those of non-capital murder cases) are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant’s guilt.”
Friends of Justice has focused public attention on the six murder trials of Curtis Flowers for precisely this reason. No one (thus far) can prove that Mr. Flowers didn’t murder four people in a Winona, Mississippi furniture store in 1996; but the state of Mississippi has never proven that he did. The only piece of real evidence implicating Mr. Flowers in this horrendous crime is a bloody footprint found at the scene made, expert testimony suggests, by a size 10.5 Grant Hill Fila running shoe. An empty shoebox for a pair of 10.5 Filas was found in the closet Flowers shared with his girlfriend, Connie Moore. She says the shoes were purchased for her son and that she kept the box to store Christmas bows.
The remainder of the “evidence” introduced by the state was extorted from weak and emotionally unstable witnesses who were asked if they had seen Curtis Flowers at particular places and times. Witnesses were offered $30,000 for a positive response and threatened with perjury prosecution if they changed their minds later on. One witness in the case has spent the intervening years in and out of mental hospitals; another was recently convicted of claiming over $600,000 in bogus income tax deductions.
Only once has the state’s evidence in the Flowers case been presented to a jury of his peers. In trial four, all seven white jurors voted to convict while all five black jurors held out for acquittal.
None of the family members associated with the murder victims in this case were ever seriously questioned by the prosecution. Local rumor has it that the husband of one victim had taken out a large life insurance policy on his wife shortly before she was killed. Family members of another victim also possessed motive for arranging a hired hit.
It is impossible to evaluate the culpability of family members who were never interrogated by investigators. But we know that all four victims died from a bullet to the back of the head. The crime has all the marks of a contract killing and it is doubtful that a single individual could have dispatched four people without assistance from a second gunman.
The state has never produced a convincing motive. At the most recent trial, in June of 2010, it was revealed that investigators settled on Curtis as their suspect within two hours of discovering the bodies–in other words, before they even knew about the footprint evidence. Roxanne Ballard, a daughter of the slain Bertha Tardy, found a paycheck in the amount of $82 payable to Curtis Flowers and decided that he must be the culprit. The state focused their attention on Flowers before a shred of evidence connected him to the crime. He was the kind of suspect folks were willing to accept.
The dismal stream of DNA exonerations we have witnessed in rape and murder cases in recent years inevitably stem from shaky prosecutions remarkably similar to the Flowers case. Prosecutors with no real evidence artificially construct a case around a low-status suspect who can’t prove his innocence. Often the defendant is tied to the case by sheer coincidence and tainted witness testimony. As the shock quotient of the crime rises, the evidentiary standard falls. Jurors influenced by far too many TV murder mysteries and cop dramas are more than willing to connect the dots no matter how flimsy the case. The professional standards of the investigators on television are always above reproach (unless you’re watching HBO).
The abstract merits and demerits of the death penalty have little bearing on what actually transpires in the American courtroom. As Bob Herbert observed in a recent New York Times column stimulated by John Paul Stevens’ essay, the death penalty, as a practical matter, is “broken beyond repair.”
Sure, violent, sadistic, inhumane behavior sparks a desire for revenge bordering on bloodiest. Right or wrong, revenge can be satisfying–at least in prospect. But given the demonstrable prevalence of new Jim Crow racism, the blatant grandstanding of tough-on-crime politicians, the amoral manipulations of convict-at-all-cost prosecutors, and the demonstrable bias of “death qualified” juries, the death penalty must be abolished.
Judge John Paul Stevens can no longer evaluate the death penalty abstractly, legally or philosophically. He has seen too much.