After months of waiting, today the Supreme Count handed down its decision in one of the biggest cases of the term, Baze v. Rees. As I blogged back in January, Baze involves the issue of whether the standard 3-drug cocktail procedure used in lethal injections violated the prohibition against cruel and unusual punishment in the Eighth Amendment. Not surprisingly, the Court held that it didn't, 7-2, so the 30+ states with the death penalty and the federal government are free to crank back up their machineries of death once more.
What's bound to make more waves in the press than the actual decision itself, it how Justice Stevens came out swinging in his concurrence at the concept of capital punishment itself:
The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.That's at pages 46 and 55 of the PDF on the Court's website (some formatting stuff omitted).* * *
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.' Furman, 408 U. S., at 312 (White, J., concurring).
It's not the first time a Justice has issued such a call - in one of the Court's decisions last term involving gender discrimination in the workplace, Justice Ginsburg used her dissent to urge Congress to revise the statute to adopt the dissenters' interpretation of the applicable statute. It provoked some criticism at the time, but given that anything not in "the Court's" opinion is legally powerless, I don't see the harm.
More to the point, is Stevens right? Have we, as a nation, simply coasted along with regards to the death penalty, letting institutional inertia keep it going? Maybe. For all the bluster and bravado of people when they talk about the desire for executions, juries are returning death verdicts less and less often. Lots of states with the death penalty on the book never actually enforce it. On the other hand, earlier this year New Jersey became the first state in a long while to ditch the death penalty altogether.
That being said, assume the nation had a great debate about capital punishment and its retention was subject to some sort of national referendum - would the result be the abolition that Stevens (and I) hope for? I'm not optimistic. "Tough on crime" always sells when it comes to elections, and nothing's tougher on crime than the death penalty. 'course, I'm cynical about the democratic process any time it deals with criminal justice issues, so maybe I'd be pleasantly surprised.