Justice Steven's Regret

During a lengthy and wide-ranging conversation, Stevens said he regrets one vote: his 1976 vote to uphold the death penalty.

"I thought at the time ... that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate," he says. But, over the years, "the court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense."

In short, as moderate conservatives retired and were replaced by more hard-line conservative justices, the court changed the rules, he says. "Not only is it a larger universe, but the procedures have become more prosecution-friendly."

The court, he notes, 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.These so-called victim impact statements were once ruled too incendiary to be permissible,but four years later, a more conservative court reversed the decision. All of this, says Justice Stevens, has changed the nature of the death penalty as he and the court envisioned it in the 1970s.

These subsequent decisions 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.

Instead, he views his vote to uphold capital punishment in 1976 as the one he regrets during his tenure. It is "the one vote I would change," he says. Calling the decision "incorrect," Stevens says the 1976 court"did not foresee how it would be interpreted."