Friday, April 18, 2008


Opinion of the Day

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.” —Supreme Court Justice John Paul Stevens, quoting Justice Byron White, in his concurrence with the decision to affirm Kentucky's method of lethal injection. [pdf]

Yes, it's strange that this should be written in a concurrence, but Stevens also writes that—

The conclusion that I have reached with regard to the constitutionality of the death penalty itself .... does not, however, justify a refusal to respect precedents that remain a part of our law. This Court has held that the death penalty is constitutional, and has established a framework for evaluating the constitutionality of particular methods of execution. Under those precedents, whether as interpreted by THE CHIEF JUSTICE or JUSTICE GINSBURG, I am persuaded that the evidence adduced by petitioners fails to prove that Kentucky’s lethal injection protocol violates the Eighth Amendment. Accordingly, I join the Court’s judgment.

In other words, if the matter before the Court had been the constitutionality of the death penalty itself, he would have voted against its constitutionality. This is a change of heart, since he voted with the majority in 1976 when the Court reinstated capital punishment.

Unfortunately Justice Stevens is now 88. As they say, learning is a lifetime process.


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