Capital Injustice

As the Supreme Court considers whether the death penalty should be imposed for the crime of child rape, Justice John Paul Stevens announced he has changed his mind about capital punishment's constitutionality. While not of immediate impact, his opinion points the way to a reconsideration of this unjust, unnecessary punishment.

In 1976, his first year on the court, Stevens joined the majority opinion in Gregg v. Georgia, which reinstated the death penalty after a four-year hiatus. The majority found executions served three purposes: incapacitation, deterrence, and retribution.

But 1,099 executions later, Stevens, 88 this Sunday, believes life in prison without parole will satisfy the first two criteria. As for retribution, he wrote this week, "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."

Stevens has accurately sketched out the arbitrariness of the death penalty, as shown by the case that occasioned his dissenting opinion. The court decided Wednesday that lethal injection, as used in Kentucky, was constitutional, but surrounded the decision with such uncertainty that appeals of many capital cases are inevitable.

The court, mirroring the broader society, does not go so far as to consider executions a routine matter, unlike the United States of the 1930s, when the frequency peaked at 167 a year. The constitution bars "cruel and unusual punishment," and the death penalty has become unusual and capricious in its application. Texas has accounted for more than a third of executions since Gregg v. Georgia was decided.

Justice Antonin Scalia lashed back. "Purer experience cannot be found of the rule by judicial fiat," Scalia wrote. "The very text of [the Constitution] recognizes the death penalty is a permissible legislative choice."