Document Type


Publication Date



In a recent speech to the American Bar Association, Justice John Paul Stevens "issued an unusually stinging criticism of capital punishment." Although he "stopped short of calling for an end to the death penalty," Justice Stevens catalogued a number of its "'serious flaws,'" including several procedures that the full Court has reviewed and upheld over his dissent – selecting capital jurors in a manner that excludes those with qualms about the death penalty, permitting elected state judges to second-guess jurors when they decline to impose the death penalty, permitting states to premise death verdicts on "victim impact statements," tolerating sub-par legal representation of capital defendants, and eschewing steps that might moderate the risk of executing the innocent. News reports on the speech identified Justice Stevens as "the Supreme Court's most liberal member" who often is on the losing end of close votes in capital cases and is likely to be in that position more often now that Justice Sandra Day O'Connor has left the Court.

Justice Stevens certainly is not at the center of the current Court on the issue of the death penalty. But focusing on that point misses a more interesting one. Notwithstanding the resistance of a majority of his colleagues and the nation's law-and-order consensus, Justice Stevens's nuanced position on the death penalty is fitfully but unmistakably prevailing on the ground. In this Article, we discuss the conflicting views about how to administer the death penalty that have tormented the Court over the past thirty years, Justice Stevens's leading role in those debates, the surprising triumph of his approach on the ground even as his views have lost ground on the Court, and the need for the current Court to embrace Justice Stevens's "less is more" approach and the policy consensus that has formed around the approach.


Law | Supreme Court of the United States