Battle of Opinions: What Is the Future of the Death Penalty?

For the past 15 years, U.S. Supreme Court Justice John Paul Stevens has voiced his concern about capital punishment. Late Tuesday night, his disapproval grew even louder when he wrote a passionate opinion that sparked controversy with a fellow justice. Could this be a signal that the 89-year-old justice may want to make serious changes to the death penalty before he leaves the bench?

Earlier this week, the court was asked to decide whether to stop the execution of Cecil Johnson Jr., a man who has been on death row in Tennesseefor 29 years after killing three people in 1980. Johnson’s attorneys claimed being on death row for nearly three decades constitutes cruel and unusual punishment, but the court declined to intervene and Johnson was put to death by lethal injection early Wednesday morning.

The court decided not to hear the case regarding whether executing defendants after they serve long death-row sentences constitutes cruel and unusual punishment under the Eighth Amendment. But in an unusual twist, both Stevens and Justice Clarence Thomas penned spirited opinions. In Stevens’s opinion, he made clear that if he had his way, Johnson would still be alive, and the nearly three decades he spent on death row would indeed be considered overt punishment. Stevens powerfully reiterated “that executing defendants after such delays is unacceptably cruel.”

Stevens goes on to write that this “intolerable delay” between the time an individual is sentenced and they time he is put to death is cruel, especially when inmates are subjected to “decades of especially severe, dehumanizing conditions of confinement.” Stevens originally spoke out about this issue in the 1995 case and wrote a commanding dissent. As the years have passed, he has continued to take every opportunity to voice his disapproval of capital punishment—and other justices have supported his message. One can reasonably assume that if the court actually decided to hear the case, Justice Stephen Breyer would have joined Stevens’s logic. And there’s no telling which of the other nine members could be persuaded.

But it won’t be unanimous. The normally quiet Thomas wrote a biting response to Stevens’s opinion. Thomas seems to patronize Stevens’s argument, calling it “novel,” and adds that he was “unaware of any constitutional support for the argument then, [a]nd I am unaware of any support for it now.” Thomas went on to write, “In Justice Stevens’ view, it seems the State can never get the timing [of executions] just right.” He admits that legal history used to support executing a defendant the day after he was sentenced, but Thomas is “confident” that the court would never support this procedure today.

Will Stevens be able to sway three more justices his way, and ultimately end one of the most controversial issues in the legal system? If the opinions released earlier this week are any indication, the fight is just beginning to heat up.