National

Justice Stevens' Reversal Brings Scalia's Ire

By Nina Totenberg

Published April 20, 2008 at 1:00 PM PDT

This story was published more than 16 years ago.

U.S. Supreme Court Justices John Paul Stevens and Antonin Scalia both voted last week that lethal injections in death penalty cases are constitutional. But that was where the agreements ended. In Stevens' opinion, he reversed the stance he held in the 1970s. Scalia criticized Stevens' reversal.

Stevens, who has served on the court for 33 years and turns 88 today, said that after seeing thousands of death penalty cases and systems over the years, he has now concluded that the death penalty is unconstitutional. But, he added, he is bound by the court's precedents upholding the capital punishment, and will adhere to them, including in the lethal injection case.

Ironically, Stevens was partly responsible for one of those key precedents. In 1976 he wrote part of the opinion ending a moratorium on the death penalty and allowing it to be used again, if special procedures were used to ensure that only criminals guilty of the most heinous crimes were executed.

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In his recent last analysis, Stevens, 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 purpose. A penalty with such negligible returns to the state is patently excessive and violates the Constitution's ban on cruel and unusual punishment.

Justice Scalia responded with a rhetorical skewer. Hardest to take, he said , is Justice Stevens' "bemoaning of the enormous costs of the death penalty," since as Scalia put it, those costs are largely the creation of Justice Stevens and other justices who have encumbered capital punishment with unwarranted restrictions found nowhere in the Constitution.

And as to Stevens' new conclusion about the death penalty based on more than three decades of experience, Scalia had this to say: "Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens experience, the experience of all others, in state legislature or Congress, is, it appears of little consequence."