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Stevens reverses himself

THE NATION

He was part of the court majority that reinstated the death penalty in '76, but now calls it 'anachronistic.'

April 17, 2008|James Oliphant | Chicago Tribune

WASHINGTON — The nation's longest-serving Supreme Court justice, John Paul Stevens, on Wednesday declared his formal opposition to capital punishment.

Stevens, 87, was part of the court majority that reinstated the death penalty in America in 1976. But in a concurring opinion to Wednesday's ruling that Kentucky's use of lethal injection is constitutional, Stevens wrote that the death penalty no longer served a legitimate social function. He is the first justice to openly oppose capital punishment since Harry Blackmun in 1994.

His words came as some comfort to death penalty opponents on a day when they suffered a setback at the hands of the justices. Within hours of the 7-2 ruling, Virginia and Florida announced their intention to lift a moratorium on executions, and several other states were expected to follow suit. In California, executions could begin again by the end of the year.

But Elisabeth Semel, a law professor and director of the Death Penalty Clinic at UC Berkeley who helped bring the challenge to Kentucky's lethal-injection procedures, said the court's opinion made it clear that states can be forced to institute alternative lethal-injection procedures if they can be proven to alleviate a substantial risk of severe pain to the inmate.

That may have been one reason that Stevens, in a sense, threw up his hands and said "enough" even as he concurred with the majority in the Kentucky case. Stevens wrote that when the court agreed to hear the Kentucky challenge, he "assumed that our decision would bring the debate about lethal injection as a method of execution to a close. It now seems clear that it will not."

Then he went further, saying the death penalty was no longer meeting any of the societal aims the court laid out when it reinstated the sanction in 1976 after a four-year pause. "State-sanctioned killing," he said, is becoming "more and more anachronistic."

The Chicago native, who was named to the court by President Ford in 1975, wrote that modern, lengthy prison sentences had achieved the goal of preventing the offender from committing further crimes and said that researchers had yet to prove to his satisfaction that the death penalty deterred others from committing crimes.

That left retribution as the sole rationale for capital punishment, and there Stevens found a paradox. Noting that the court is now working to make executions as painless as possible, he wrote: "By requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is comparable to the suffering inflicted on his victim."

Justice Antonin Scalia wrote a special concurrence to criticize Stevens, saying that his reversal on the issue was "astounding" and that he was substituting his own views for those of state legislatures elected by the people.

"It is Justice Stevens' experience that reigns over all," he wrote mockingly.

Notwithstanding Stevens' stance, states were gearing up to put a pair of killers to death. Florida officials said that the high court's decision paved the way for the execution of Mark Dean Schwab, convicted of raping and killing an 11-year-old boy in 1991.

And in Virginia, Gov. Tim Kaine cleared the way for the execution of Edward Bell, who killed a police officer in 1999. His execution was scheduled for April 8, but Kaine had postponed it until July in advance of the Supreme Court ruling.

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