In a closely-watched decision, the US Supreme Court today upheld Kentucky’s method of imposing the death penalty by lethal injection. Predictably, there was no majority opinion. Chief Justice Roberts wrote for himself and Justices Kennedy and Alito. Justices Scalia (joined by Thomas), Thomas (joined by Scalia), Breyer, and Stevens filed separate opinions agreeing with the result but not with Roberts’ reasoning. Justice Ginsburg (joined by Souter) dissented. You can read all the opinions here. The always-excellent SCOTUSblog has lots more.
Of particular note is the opinion of Justice Stevens. Toward the end of his otherwise unremarkable opinion, he drops this bombshell:
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).
Sure sounds like Stevens has decided that the death penalty is always unconstitutional. Talk about burying your lede — the beginning of Stevens’ opinion does not let on anything like that. You have to read to the end to realize that Stevens has now joined ex-Justices Blackmun, Brennan, and Marshall — and has become the only Justice currently sitting on the Court — to take the view that the death penalty is always unconstitutional.
Yet, Stevens votes to uphold Kentucky’s procedures, reasoning:
The conclusion that I have reached with regard to the constitutionality of the death penalty itself makes my decision in this case particularly difficult. It 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.
Sounds like Stevens is prepared to hold that the death penalty is unconstitutional in an appropriate case; but since that issue was not before the Court this time, he goes along with the result in Kentucky.