Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2008

On April 16, the Supreme Court handed down one of the most anticipated opinions of the past term. In Baze v. Rees, the Court addressed the question of whether Kentucky’s administration of a three-drug lethal injection "cocktail" for executions — a protocol currently used by 30 states and the federal government — constitutes cruel and unusual punishment under the Eighth Amendment. In a fractured 7-2 decision, the Court upheld the procedure against the constitutional challenge.1

Given the widespread use of the lethal injection protocol challenged in Baze, the significance of Baze’s holding to the practice of capital punishment in the United States is apparent. But Baze is significant for another reason, one related only marginally to the central dispute in question. In his opinion concurring in the Court’s judgment, Justice John Paul Stevens wrote:

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.

Stevens’s opinion marks the first time in over a decade that a sitting justice has declared that imposition of the death penalty itself is unconstitutional.

Even to the most avid of Supreme Court observers, Stevens’ pronouncement came as a surprise. It marked a startling about-face for a justice who, over 30 years ago, cast one of the deciding votes in Gregg v. Georgia, the 1976 case that ended the moratorium on death sentences that the Court had established six years earlier in Furman v. Georgia. In the years following Gregg, Stevens had on multiple occasions voted to affirm death sentences, and had voted to deny innumerable stays of execution. While recent comments — such as his statement, in a 2005 speech to the American Bar Association, that "a substantial number of death sentences have been imposed erroneously" — indicated Stevens’ growing discomfort with capital punishment, his full scale rejection of the death penalty’s constitutionality was still hardly foreseeable. After all, he had long resisted the arguments against the constitutionality of the death penalty set forth by Justice Marshall and Justice Brennan during his tenure on the Court.

Stevens’ pronouncement was even more surprising in light of the context in which it was made. Baze dealt solely with one particular mechanism of carrying out the death penalty, and the case’s outcome rested, in large part, on an evaluation of the scientific and empirical evidence surrounding the administration of the three-drug lethal injection protocol. It was certainly not an obvious vehicle for exploring the theoretical rationales underlying the constitutionality of the death penalty itself. That Stevens chose this case — rather than, say, Kennedy v. Louisiana, a case argued later in the same term that addressed the scope of the death penalty — adds to the mystery surrounding the pronouncement.

But while Stevens’ change of heart regarding the constitutionality of the death penalty may have been surprising, it was certainly not unprecedented. Fourteen years ago, in a 1994 opinion dissenting from the denial of certiorari in Callins v. Collins, Justice Harry Blackmun wrote: "From this day forward, I no longer shall tinker with the machinery of death. . . . It is virtually self-evident to me now that no combination of procedural rules or substantive regulations can ever save the death penalty from its inherent constitutional deficiencies."

The similarities between Blackmun’s and Stevens’ pronouncements are striking. Like Stevens, Blackmun had voted to reinstate the death penalty in Gregg v. Georgia, and had subsequently voted to affirm death sentences on multiple occasions. Like Stevens, Blackmun made his pronouncement in the context of an unexpected vehicle: in dissent to an otherwise unexceptional denial of certiorari and stay of execution (a denial of the sort that had become, for better or for worse, part of the Court’s daily routine). And like Stevens, Blackmun had long resisted the arguments of Marshall and Brennan against the constitutionality of the death penalty
beforehis change of heart.

Perhaps most intriguing, both pronouncements came after the justices had served on the Court for many years. At the time of Callins, Blackmun was 86 years old and had served on the Court for 24 years; he would retire less than six months later. Similarly, Stevens, at the time of Baze, was 87 years old, and had served on the Court for over 32 years. Both justices emphasized the significant effect of their long experience on the Court on their respective decisions. Blackmun wrote: "For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor." Similarly, Stevens stated that "just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching [my] conclusion."

Exactly what role might experience have played in the justices’ respective decisions? The answer may well rest on an oft-overlooked aspect of the justices’ jobs. The Court receives a last-minute application for a stay of execution for nearly every execution in the United States; at times, the Court will receive one or more of these applications each day. Each justice must vote on the application prior to the execution, and the process often stretches (literally) into the 11th hour and beyond — some West Coast executions, for example, may be scheduled as late as 2 a.m., Eastern time, and the papers are sometimes filed immediately before the time of execution. While the vast majority of these applications are denied, the Court will occasionally intervene where the issue raised by the capital defendant is deemed appropriate, or potentially appropriate, for certiorari review.

During the course of a term each justice will likely have reviewed scores of stay applications from capital defendants; indeed, in many cases, the last thing the justice will do before going to sleep at night is to vote on such an application. One could surmise that for at least some of the justices, this process is incredibly wearying on a mental and spiritual level. Justices must constantly review capital cases that are often based on heinous and horrifying criminal acts. At the same time, they likely encounter a number of close cases where, despite a Court vote to deny a stay application, they retain some doubt as to whether the Court’s decision to allow the execution to proceed was correct.

At the time of their respective pronouncements, both Blackmun and Stevens had reviewed hundreds, if not thousands, of these stay applications. It may be that the justices, having seen so many indeterminate shades of gray in this multitude of capital cases, simply lost confidence in the judiciary’s ability to draw clear lines as to where capital punishment is constitutionally permissible. Or maybe, on a more visceral level, it was simply the weariness borne from constant exposure to the horrors of capital crimes and the utter finality of executions that led these justices to finally renounce any desire to "tinker with the machinery of death." In any event, it is clear that extensive exposure to capital cases during their long tenures on the Court eventually led both justices to a different perspective on the issue — a perspective that they may not have grasped as relatively junior justices
in 1976.

For all of the similarities between the two pronouncements, however, one significant difference stands out: the justices’ respective choices of tone and language. Justice Blackmun’s opinion often adopts a visceral and dramatic tone rarely seen in a Supreme Court opinion; for instance, the opinion begins with a highly dramatized description of Callins’s execution: "The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction." Even more striking is the uniquely personal tone that Blackmun takes throughout the opinion. Although grounded in legal doctrine, the opinion ultimately reads less like a sober legal analysis than a personal apologia penned by one seeking to justify his past actions. Both of these tonal strands are encapsulated in the final lines of the opinion, which combine a stinging rebuke of the Court with a sobering reference to Blackmun’s own mortality: "I may not live to see that day [when the Court deems the death penalty unconstitutional], but I have faith that eventually it will arrive. The path the Court has chosen lessens us all. I dissent."

Stevens’ opinion, on the other hand, is far more modest in tone and content. Stevens lays out and explains, in systematic fashion, three basic reasons for his conclusion: the erosion of the traditional rationales underlying the death penalty; the absence of sufficient procedures to protect the rights of capital defendants; and the irrevocable nature of the penalty in the face of a strong possibility for error. Unlike Blackmun, he does not seek to justify or explain his prior voting record, nor does he rely on visceral imagery or dramatic indictments of the Court’s actions. In fact, Stevens’ ultimate conclusion is not even stated in his own words. Rather, he simply adopts Justice White’s statement in Furman that "[a] penalty with such negligible returns to the State is patently excessive and cruel and unusual punishment violative of the Eighth Amendment." This comparatively modest tone is further underscored by the fact that Justice Stevens eventually concurs with the Baze Court’s judgment on the basis of stare decisis alone.

One who is inclined to speculate could read volumes from the very different tones taken by the two justices. At times, Blackmun’s opinion reads like a personal confession from one finally releasing himself from a long-held burden. That Blackmun announced his imminent retirement from the Court a mere two months after Callins thus should not have come as a shock; Callins was, on its face, a self-conscious valedictory marking the end of a long judicial career. By contrast, Stevens’ Baze opinion is, at its heart, a straightforward legal analysis framed by what Stevens deemed to be changed circumstances: the breakdown of traditional rationales supporting the death penalty; the Court’s failure to erect sufficient procedural protections for capital defendants; and the growing realization that capital cases may be infected by significant error. There is no exorcising of personal demons or bridge-burning excoriations of the Court in the opinion — only a recognition, on Stevens’ part, that his position on the death penalty must necessarily evolve. On this basis, it may ultimately be inaccurate to read Stevens’ Baze opinion as simply a latter-day recurrence of Blackmun’s pronouncement in Callins. Stevens’ opinion is no confessionary coda marking the end of a long career — it is the statement of one who, even after 32 years on the Court, remains vitally engaged with his duties as a justice, and recognizes that those duties may sometimes require a reevaluation of one’s longest-held beliefs.


1. Munger, Tolles & Olson filed an amicus brief in support of the
petitioners in Baze on behalf of a group of clinical care providers and clinical ethicists.


Bleich is a frequent contributor to the OSB Bulletin. The authors’ articles on the Supreme Court appear regularly in The San Francisco Attorney magazine, published bi-monthly by the Bar Association of San Francisco.

The authors all previously clerked at the U.S. Supreme Court. Jeff Bleich is a litigator at Munger, Tolles & Olson in San Francisco who clerked for the late Chief Justice William H. Rehnquist in the 1990 term and lectures on constitutional law at UC Berkeley School of Law. He is the 2007-08 president of the State Bar of California. Michelle Friedland is a litigator at Munger, Tolles & Olson in San Francisco who clerked for Justice Sandra Day O’Connor in the 2001 term and has taught federal jurisdiction at Stanford Law School. Aimee Feinberg is a litigator at Munger, Tolles & Olson in San Francisco who clerked for Justice Stephen Breyer in the 2004 term, and David Han is a litigator at Munger, Tolles & Olson in San Francisco who clerked for Justice Souter in the 2006 term. Dan Bress clerked for Justice Scalia in the 2006 term..

© 2008 Jeff Bleich, Michelle Friedland, Aimee Feinberg, David Han, Dan Bress

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