More than one prominent public servant has concluded that opposition to the death penalty must be expressed as long as there’s a chance to do so.
Gov. Winthrop Rockefeller’s last official act was to spare the lives of 15 prisoners on Arkansas’s Death Row. “What earthly mortal has the omnipotence to say who among us shall live and who shall die?” he asked in 1970. “I cannot and will not turn my back on lifelong Christian teachings and beliefs merely to let history run out its course on a fallible and failing theory of punitive justice.”
Though dramatic, Rockefeller’s grant of clemency was not entirely a surprise. He was known to oppose the death penalty. U.S. Supreme Court Justice Harry Blackmun, on the other hand, had tolerated capital punishment throughout his judicial career, until a few months before retirement in 1994. Then he renounced the death penalty, finding it unacceptable in all circumstances. “The death-penalty experiment has failed,” he wrote. “I no longer shall tinker with the machinery of death.”
And now Justice John Paul Stevens has become the first member of the present Supreme Court to repudiate the death penalty. He wrote last week:
“The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived. I have relied on my own experience in reaching the conclusion that the imposition of 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.” Much of Stevens’ language was taken from an earlier opinion by Justice Byron White.
Stevens has announced no plans for retirement from the court, but at the age of 88 he can’t continue long. Younger justices favor the death penalty, and last week upheld the use of lethal injection. (Justice Stevens reluctantly concurred in that ruling, saying that despite his new view of capital punishment, he was bound to honor court precedents.) A Democratic president might appoint an opponent of capital punishment to succeed Stevens, but even so, there’s little hope that the Supreme Court will invalidate the death penalty in the foreseeable future. Scalias and Thomases are not inclined toward compassionate reassessment.
So the initiative to eliminate the death penalty will have to come from within the 36 states that still impose it. In Arkansas, death-penalty opponents are seeking a moratorium on executions and an official study of the way the penalty is applied. They hope to gain public support. Theirs is a hard job, and a noble one.