The one vote John Paul Stevens would change from his 35-year career on the Supreme Court was the 1976 one to resume capital punishment, he tells NPR. The main reason is that legal procedures “have become more prosecution-friendly.” The high court has become more permissive in allowing prosecutors to object to seating jurors who have qualms about the death penalty. The result is that instead of getting a random sample of jurors, jury panels are more supportive of the death penalty. In addition, the court now allows the relatives of crime victims to testify during the penalty phase of a capital trial. All of this, says Stevens, has changed the nature of the death penalty as he and the court envisioned it in the 1970s.
Decisions in recent decades tend to “load the dice in favor of the prosecution and against the defendant,” Stevens says. “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing. And I think if the procedures had been followed that we expected to be in place, I think I probably would’ve still had the same views.” Namely, he would have continued to favor a narrowly circumscribed death penalty. Calling the 1976 death penalty decision “incorrect,” Stevens says the 1976 court “did not foresee how it would be interpreted.”