AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
concurring in the judgment.
When we granted certiorari in this case, I 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. The question whether a similar three-drug protocol may be used in other States remains open, and may well be answered differently in a future case on the basis of a more complete record. Instead of ending the controversy, I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.
I
Because it masks any outward sign of distress, pancuronium bromide creates a risk that the inmate will suffer excruciating pain before death occurs. There is a general understanding among veterinarians that the risk of pain is sufficiently serious that the use of the drug should be proscribed when an animal’s life is being terminated.
Use of pancuronium bromide is particularly disturbing because — as the trial court specifically found in this case — it serves “no therapeutic purpose.” App. 763. The drug’s primary use is to prevent involuntary muscle movements, and its secondary use is to stop respiration. In my view, neither of these purposes is sufficient to justify the risk inherent in the use of the drug.
The plurality believes that preventing involuntary movement is a legitimate justification for using pancuronium bromide because “[t]he Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress.” Ante, at 57. This is a woefully inadequate justification. Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.
Nor should the failure of other state legislatures, or of Congress, to outlaw the use of the drug on condemned prisoners be viewed as a nationwide endorsement of an unnecessarily dangerous practice. Even in those States where the legislature specifically approved the use of a paralytic agent, review of the decisions that led to the adoption of the three-drug protocol has persuaded me that they are the product of “ ‘administrative convenience’ ” and a “stereotyped reaction” to an issue, rather than a careful analysis of relevant considerations favoring or disfavoring a conclusion. See Mathews v. Lucas, 427 U. S. 495, 519, 520-521 (1976) (Stevens, J., dissenting). Indeed, the trial court found that “the various States simply fell in line” behind Oklahoma, adopting the protocol without any critical analysis of whether it was the best available alternative.
New Jersey’s experience with the creation of a lethal injection protocol is illustrative. When New Jersey restored the death penalty in 1983, its legislature “fell in line” and enacted a statute that called for inmates to be executed by “continuous, intravenous administration until the person is dead of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent in a quantity sufficient to cause death.” N. J. Stat. Ann. §2C:49-2 (West 2005). New Jersey Department of Corrections (DOC) officials, including doctors and administrators, immediately expressed
Indeed, DOC officials seemed to harbor the same concerns when they undertook to revise New Jersey’s lethal injection protocol in 2005. At a public hearing on the proposed amendment, the DOC supervisor of legal and legislative affairs told attendees that the drugs to be used in the lethal injection protocol were undetermined:
“Those substances have not been determined at this point because when and if an execution is scheduled the*77 [DOC] will be doing research and determining the state-of-the-art drugs at that point in time .... We have not made a decision on which specific drugs because we will have several months once we know that somebody is going to be executed and it will give us the opportunity at that point to decide which would be the most humane.
“And things change. We understand that the state-of-the-art is changing daily so to say we are going to use something today when something may be more humane becomes known later wouldn’t make sense for us.” Tr. of Public Hearing on Proposed Amendments to the New Jersey Lethal Injection Protocol 36 (Feb. 4, 2005).
It is striking that when this state agency — with some specialized medical knowledge and with the benefit of some expert assistance and guidance — focused on the issue, it disagreed with the legislature’s “stereotyped reaction,” Mathews, 427 U. S., at 520,521 (Stevens, J., dissenting), and specified a two-drug protocol that omitted pancuronium bromide.
In my view, therefore, States wishing to decrease the risk that future litigation will delay executions or invalidate their protocols would do well to reconsider their continued use of pancuronium bromide.
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.
In Gregg v. Georgia, 428 U. S. 158 (1976), we explained that unless a criminal sanction serves a legitimate penological function, it constitutes “gratuitous infliction of suffering” in violation of the Eighth Amendment. We then identified three societal purposes for death as a sanction: incapacitation, deterrence, and retribution. See id., at 183, and n. 28 (joint opinion of Stewart, Powell, and Stevens, JJ.). In the past three decades, however, each of these rationales has been called into question.
While incapacitation may have been a legitimate rationale in 1976, the recent rise in statutes providing for life imprisonment without the possibility of parole demonstrates that incapacitation is neither a necessary nor a sufficient justification for the death penalty.
The legitimacy of deterrence as an acceptable justification for the death penalty is also questionable, at best. Despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.
We are left, then, with retribution as the primary rationale for imposing the death penalty. And indeed, it is the retribution rationale that animates much of the remaining enthu
At the same time, however, as the thoughtful opinions by The Chief Justice and Justice Ginsburg make pellucidly clear, our society has moved away from public and painful retribution toward ever more humane forms of punishment. State-sanctioned killing is therefore becoming more and more anachronistic. In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is
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, 34 Am. 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.
“[A] penalty may be cruel and unusual because it is excessive and serves no valid legislative purpose.” Furman v. Georgia, 408 U. S. 238, 331 (1972) (Marshall, J., concurring); see also id., at 332 (“The entire thrust of the Eighth Amendment is, in short, against ‘that which is excessive’ ”). Our cases holding that certain sanctions are “excessive,” and therefore prohibited by the Eighth Amendment, have relied
Justice White was exercising his own judgment in 1972 when he provided the decisive vote in Furman, the case that led to a nationwide reexamination of the death penalty. His conclusion that death amounted to “cruel and unusual punishment in the constitutional sense” as well as the “dictionary sense,” rested on both an uncontroversial legal premise and on a factual premise that he admittedly could not “prove” on the basis of objective criteria. 408 U. S., at 312, 313 (concurring opinion). As a matter of law, he correctly stated that the “needless extinction of life with only marginal contributions to any discernible social or public purposes . . . would be patently excessive” and violative of the Eighth Amendment. Id., at 312. As a matter of fact, he stated, “like my Brethren, I must arrive at judgment; and I can do no more than state a conclusion based on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty.”
Our decisions in 1976 upholding the constitutionality of the death penalty relied heavily on our belief that adequate procedures were in place that would avoid the danger of discriminatory application identified by Justice Douglas’ opinion in Furman, id., at 240-257 (concurring opinion), of arbitrary application identified by Justice Stewart, id., at 306 (same), and of excessiveness identified by Justices Brennan and Marshall. In subsequent years a number of our decisions relied on the premise that “death is different” from every other form of punishment to justify rules minimizing the risk of error in capital cases. See, e. g., Gardner v. Florida, 430 U. S. 349,357-358 (1977) (plurality opinion). Ironically, however, more recent cases have endorsed procedures that provide less protections to capital defendants than to ordinary offenders.
Of special concern to me are rules that deprive the defendant of a trial by jurors representing a fair cross section of the community. Litigation involving both challenges for cause and peremptory challenges has persuaded me that the process of obtaining a “death qualified jury” is really a procedure that has the purpose and effect of obtaining a jury that is biased in favor of conviction. The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive.
Another serious concern is that the risk of error in capital cases may be greater than in other cases because the facts are often so disturbing that the interest in making sure the
A third significant concern is the risk of discriminatory application of the death penalty. While that risk has been dramatically reduced, the Court has allowed it to continue to play an unacceptable role in capital cases. Thus, in Mc-Cleskey v. Kemp, 481 U. S. 279 (1987), the Court upheld a death sentence despite the “strong probability that [the defendant’s] sentencing jury... was influenced by the fact that [he was] black and his victim was white.” Id., at 366 (Stevens, J., dissenting); see also Evans v. State, 396 Md. 256, 323, 914 A. 2d 25, 64 (2006), cert. denied, 552 U. S. 835 (2007) (affirming a death sentence despite the existence of a study showing that “the death penalty is statistically more likely to be pursued against a black person who murders a white victim than against a defendant in any other racial combination”).
Finally, given the real risk of error in this class of cases, the irrevocable nature of the consequences is of decisive im
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 812 (White, J., concurring).
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.
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.
I join the opinion of Justice Thomas concurring in the judgment. I write separately to provide what I think is needed response to Justice Stevens’ separate opinion.
I
Justice Stevens concludes as follows: “[T]he 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.” Ante, at 86 (opinion concurring in judgment) (internal quotation marks omitted; second bracket in original).
This conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice. The Fifth Amendment expressly requires a
II
What prompts Justice Stevens to repudiate his prior view and to adopt the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution? His analysis begins with what he believes to be the “uncontroversial legal premise” that the “ 'extinction of life with only marginal contributions to any discernible social or public purposes ... would be patently excessive’ and violative of the Eighth Amendment.” Ante, at 83 (quoting in part Furman, supra, at 312 (White, J., concurring)); see also ante, at 78 (citing Gregg, supra, at 183, and n. 28). Even if that were uncontroversial in the abstract (and it is certainly not what occurs to me as the meaning of “cruel and unusual punishments”), it is assuredly controversial (indeed, flatout wrong) as applied to a mode of punishment that is explicitly sanctioned by the Constitution. As to that, the
According to Justice Stevens, the death penalty promotes none of the purposes of criminal punishment because it neither prevents more crimes than alternative measures nor serves a retributive purpose. Ante, at 78. He argues that “the recent rise in statutes providing for life imprisonment without the possibility of parole” means that States have a ready alternative to the death penalty. Ibid. Moreover, “[d]espite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.” Ante, at 79. Taking the points together, Justice Stevens concludes that the availability of alternatives, and what he describes as the unavailability of “reliable statistical evidence,” renders capital punishment unconstitutional. In his view, the benefits of capital punishment — as compared to other forms of punishment such as life imprisonment — are outweighed by the costs.
These conclusions are not supported by the available data. Justice Stevens’ analysis barely acknowledges the “significant body of recent evidence that capital punishment may well have a deterrent effect, possibly a quite powerful one.” Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 706 (2005); see also id., at 706, n. 9 (listing the approximately half a dozen studies supporting this conclu
Of course, it may well be that the empirical studies establishing that the death penalty has a powerful deterrent effect are incorrect, and some scholars have disputed its deterrent value. See ante, at 79, n. 13. But that is not the point. It is simply not our place to choose one set of responsible empirical studies over another in interpreting the Constitution. Nor is it our place to demand that state legislatures support their criminal sanctions with foolproof empirical studies, rather than commonsense predictions about human behavior. “The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.” Gregg, supra, at 186 (joint opinion of Stewart, Powell, and Stevens, JJ.). Were Justice Stevens’ current view the constitutional test, even his own preferred criminal sanction — life imprisonment without the possibility of parole— may fail constitutional scrutiny, because it is entirely unclear that enough empirical evidence supports that sanction as compared to alternatives such as life with the possibility of parole.
But even if Justice Stevens’ assertion about the deterrent value of the death penalty were correct, the death penalty would yet be constitutional (as he concedes) if it served the appropriate purpose of retribution. I would think it difficult indeed to prove that a criminal sanction fails to serve a retributive purpose — a judgment that strikes me as inherently subjective and insusceptible of judicial review. Justice Stevens, however, concludes that, because the Eighth Amendment “protect[s] the inmate from enduring any pun
Justice Stevens’ final refuge in his cost-benefit analysis is a familiar one: There is a risk that an innocent person might be convicted and sentenced to death — though not a risk that Justice Stevens can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system. See ante, at 84-86. His analysis of this risk is thus a series of sweeping condemnations that, if taken seriously, would prevent any punishment under any criminal justice system. According to him, “[t]he prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty is excessive.” Ante, at 84. But prosecutors undoubtedly have a similar concern that any unanimous conviction would rarely be returned by 12 randomly selected jurors. That is why they, like defense counsel, are permitted to use the challenges for cause and peremptory challenges that Justice Stevens finds so troubling, in order to arrive at a jury that both sides believe will be more likely to do justice in a
But of all Justice Stevens’ criticisms of the death penalty, the hardest to take is his bemoaning of “the enormous costs that death penalty litigation imposes on society,” including the “burden on the courts and the lack of finality for victim’s families.” Ante, at 81, and n. 17. Those costs, those burdens, and that lack of finality are in large measure the creation of Justice Stevens and other Justices opposed to the death penalty, who have “encumber[ed] [it] . . . with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it” — the product of their policy views “not shared by the vast majority of the American people.” Kansas v. Marsh, 548 U. S. 163, 186 (2006) (Scalia, J., concurring).
But actually none of this really matters. As Justice Stevens explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 83 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 86 (emphasis added).
Purer expression cannot be found of the principle of rule by judicial flat. In the face of Justice Stevens’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress — who retain the death penalty as a form of punishment — is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 78. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 79, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 80. It is Justice Stevens’ experience that reigns over all.
I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views — which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.
Although I agree that petitioners have failed to establish that Kentucky’s lethal injection protocol violates the Eighth Amendment, I write separately because I cannot subscribe to the plurality opinion’s formulation of the governing standard. As I understand it, that opinion would hold that a method of execution violates the Eighth Amendment if it poses a substantial risk of severe pain that could be significantly reduced by adopting readily available alternative procedures. Ante, at 52. This standard — along with petitioners’ proposed “unnecessary risk” standard and the dissent’s “untoward risk” standard, post, at 114 (opinion of Ginsburg, J.) — finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve. Because, in my view, a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain, I concur only in the judgment.
I
The Eighth Amendment’s prohibition on the “inflict[ion]” of “cruel and unusual punishments” must be understood in light of the historical practices that led the Framers to include it in the Bill of Rights. Justice Stevens’ ruminations notwithstanding, see ante, at 78-86 (opinion concurring in judgment), it is clear that the Eighth Amendment does not prohibit the death penalty. That is evident both from the ubiquity of the death penalty in the founding era, see S. Banner, The Death Penalty: An American History 23 (2002) (hereinafter Banner) (noting that, in the late 18th century, the death penalty was “the standard penalty for all serious crimes”), and from the Constitution’s express provision for capital punishment, see, e. g., Arndt. 5 (requiring an indict
That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment. “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century" state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[ojfficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.
One such “tool” was burning at the stake. Because burning, unlike hanging, was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order — such as slaves who killed their masters and women who killed their husbands — burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.
Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72-74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (W. Lewis ed. 1897) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was
“ ‘That you and each of you, be taken to the place from whence you came, and from thence be drawn on a hurdle to the place of execution, where you shall be hanged by the necks, not till you are dead; that you be severally taken down, while yet alive,