Up the Road From Scottsboro, Justice Stevens Speaks Out Against Capital Punishment

It seems fitting that Justice John Paul Stevens chose Chattanooga, Tenn., for his first public comments since he declared that capital punishment is unconstitutional with these words in Baze v. Rees :

[T]he 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.”

Stevens reaffirmed that conclusion Friday, telling jurists assembled in Chattanooga for the 6th Circuit Judicial Conference that when Eight Belles collapsed after placing second in the May 3 Kentucky Derby and was put to death on the track, “’I had checked the procedure they used to kill the horse.’” He discovered that Kentucky forbids using on animals one of the three drugs frequently employed in lethal-injection executions. According to Monica Mercer of the Chattanooga Times Free Press , Stevens “suggested” that the doomed filly “had probably experienced a more humane death than those who die on death row.”

Chattanooga, it may be remembered, was the intended destination of nine African-American young men whom a sheriff’s posse pulled off a freight train and brought to Scottsboro , Ala., where within weeks most were convicted of capital rape (a crime now under Supreme Court review ) and sentenced to death.
On this date in 1931, eight of the condemned Scottsboro defendants were interviewed by teacher/author/activist Hollace Ransdell, who wrote in her report , commissioned by the American Civil Liberties Union:

I visited them there in their cells in the death row on May 12, locked up two together in a cell, frightened children caught in a terrible trap without understanding what it is all about.

Cases of two Scottsboro defendants resulted in landmark Supreme Court judgments: Powell v. Alabama (1932) established that the Constitution guarantees indigent capital defendants a right to effective appointed counsel, while Norris v. Alabama (1935) held that the county’s systematic exclusion of African-Americans from the jury pool violated the Constitution’s equal-protection guarantees. No Scottsboro defendant was executed.

Alabama retains capital punishment, however, as do three of the four states in the 6th Circuit: Kentucky, home to the derby and the Baze case; Tennessee, home to Chattanooga; and Ohio have a total of four women and 317 men on death row (the fourth state in the circuit, Michigan, does not permit the death penalty). Thus it’s worth noting that Stevens’ criticism of the sentence reportedly “drew a round of applause” from the scores of federal judges and hundreds of lawyers in attendance.

Stevens indicated that even as he continues to adhere to court precedents authorizing capital punishment—indeed, he voted against capital defendants on the precise issues at bar in Baze and in a consular-access case, Medellín —he welcomes discussion on the ultimate question. Referring to the former decision, Chattanooga’s Mercer wrote:

Justice Stevens … conceded his opinion would ‘generate debate not only about the constitutionality of the three-drug protocol, but also about the justification for the death penalty itself.’

( Cross-posted at IntLawGrrls blog)