Author: Kalvis Golde

The death penalty has generated dispute and controversy at the Supreme Court for decades. This past term was nothing new. In Bucklew v. Precythe, Justice Neil Gorsuch proclaimed for a bare majority that “the Eighth Amendment does not guarantee a prisoner a painless death.” Justice Elena Kagan garnered just enough votes in Madison v. Alabama to clarify that execution may be cruel and unusual if  “dementia or another disorder,” as opposed to “psychotic delusions,” has left the accused with no memory of the offense. In Dunn v. Ray and Murphy v. Collier, the court allowed Alabama’s execution of Domineque Ray to go forward despite the prison’s denial of Ray’s request that a Muslim imam be present in the execution chamber, but blocked Texas from executing Patrick Henry Murphy, who had requested the presence of a Buddhist spiritual adviser – with Justice Brett Kavanaugh taking pains in a separate statement to delineate a distinction. As we approach a new term, the justices will continue to hear capital cases and the federal government will pursue executions in federal cases for the first time in two decades. We have become so inured to this state of affairs it can be hard to remember the source of all the controversy, and indeed of the modern death penalty itself. To search for that origin takes us back to 1972, the beginning of a four-year saga during which the Supreme Court reversed, and then reversed again, its position on executions in the United States. At the heart of that reversal lay the appointment of the late Justice John Paul Stevens. Much has been discussed this summer in remembrance of Stevens’ legacy. A closer look at his role in establishing the modern death penalty – for which he would later publicly proclaim regret – may help us better appreciate the contours of where we now stand.