Today's landmark Supreme Court decision in Baze v. Rees, upholding lethal injection as a method of capital punishment, runs 91 pages long, with six justices in the majority writing opinions and one dissent. Tune in later for a fuller story on the decision and its impact, but one remarkable fact stands out. For the first time since Justice Harry Blackmun retired in 1994, the membership of the Court includes a death penalty opponent.
Justice John Paul Stevens, who turns 88 next Sunday, writes in a concurrence that the Court's discussion of lethal injection has led him to conclude that "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived."
The problems of the unfair imposition of the death penalty, the possibility of error, and the weakness of retribution as a rationale for executions, Stevens writes, now lead him to conclude from his own expereience that 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.” (Much of Stevens' formulation is drawn from the late Justice Byron White's concurring opinion in Furman v. Georgia.)
But at least for now, Stevens is not taking his opposition as far as the late Justices Thurgood Marshall and William Brennan Jr. did. They would dissent from even the most routine death penalty cases, but Stevens joined the majority today in upholding Kentucky's execution method. His new view on the death penalty, Stevens says, "does not, however, justify a refusal to respect precedents that remain a part of our law."
Justice Antonin Scalia attacked Stevens for basing his new stance on his own experiences as a judge. "Purer expression cannot be found of rule by judicial fiat," Scalia wrote. "It is Justice Stevens' experience that reigns over all."