John Paul Stevens is retiring. It’s understandable: the man is turning 90 years old, and has served his country well.
As a revered member of the United States Supreme Court, Justice Stevens will be remembered in American History for many things, not the least of which is his 2008 concurring opinion in Baze v. Rees where he wrote:
…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….
…Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question recently posed by Professor Salinas, a former Texas prosecutor and judge: “Is it time to Kill the Death Penalty?” See Salinas, 34Am. J. Crim. L. 39 (2006). 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.
… In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, 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).
At the time that the Baze v Rees decision came down, Justice Stevens was recognized as the first Supreme Court Justice setting on the bench at that time to come out and announce that he believed the death penalty to be unconstitutional. That capital punishment violates the Eighth Amendment because it is, by definition, cruel and unusual punishment.
Where will his replacement stand on the death penalty? Can Justice Stevens’ replacement be this brave, this courageous?