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STEVENS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
No. 07–5439
RALPH BAZE AND THOMAS C. BOWLING, PETI-
TIONERS v. JOHN D. REES, COMMISSIONER,
KENTUCKY DEPARTMENT OF
CORRECTIONS, ET AL.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF KENTUCKY
[April 16, 2008]
JUSTICE STEVENS, concurring in the judgment.
When we granted certiorari in this case, I assumed thatour 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 onthe 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 thethree-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 drugshould be proscribed when an animal’s life is being termi
BAZE v. REES
STEVENS, J., concurring in judgment
nated.1 As a result of this understanding among knowledgeable
professionals, several States—including Ken-
tucky—have enacted legislation prohibiting use of the
drug in animal euthanasia. See 2 Ky. Admin. Regs., tit.
201, ch. 16:090, §5(1) (2004).2 It is unseemly—to say the
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1The 2000 Report of the American Veterinary Medical Association(AVMA) Panel on Euthanasia stated that a “combination of pentobarbital
with a neuromuscular blocking agent is not an acceptable euthanasia
agent.” 218 J. Am. Veterinary Med. Assn. 669, 680 (2001). In a
2006 supplemental statement, however, the AVMA clarified that thisstatement was intended as a recommendation against mixing a barbiturate
and neuromuscular blocking agent in the same syringe, sincesuch practice creates the possibility that the paralytic will take effectbefore the barbiturate, rendering the animal paralyzed while stillconscious. The 2007 AVMA Guidelines on Euthanasia plainly state
that the application of a barbiturate, paralyzing agent, and potassiumchloride delivered in separate syringes or stages is not discussed in the
report. Several veterinarians, however, have filed an amici brief in this
case arguing that the three-drug cocktail fails to measure up to veterinary
standards and that the use of pancuronium bromide should be
prohibited. See Brief for Dr. Kevin Concannon et al. as amici curiae
16–18. The Humane Society has also declared “inhumane” the use of“any combination of sodium pentobarbital with a neuromuscular
blocking agent.” R. Rhoades, The Humane Society of the United States,
Euthanasia Training Manual 133 (2002); see also Alper, Anesthetizing
the Public Conscience: Lethal Injection and Animal Euthanasia, 35Fordham Urb. L. J. ___, ___ (forthcoming 2008), online at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1109258 (all Internet
materials as visited Apr. 10, 2008, and available in Clerk of Court’scase file) (concluding, based on a comprehensive study of animal
euthanasia laws and regulations that “the field of animal euthanasiahas reached a unanimous consensus . . . that neuromuscular blocking
agents like pancuronium have no legitimate place in the execution
process”).
2See also, e.g., Fla. Stat. §828.058(3) (2006) (“[A]ny substance which
acts as a neuromuscular blocking agent . . . may not be used on a dog orcat for any purpose”); N. J. Stat. Ann. §4:22–19.3 (West 1998) (“Whenever
any dog, cat, or any other domestic animal is to be destroyed, theuse of succinylcholine chloride, curare, curariform drugs, or any other
substance which acts as a neuromuscular blocking agent is prohibited”);
N. Y. Agric. & Mkts. Law Ann. §374(2–b) (West 2004) (“No
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STEVENS, J., concurring in judgment
least—that Kentucky may well kill petitioners using a
drug that it would not permit to be used on their pets.
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’sprimary 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 aninterest in preserving the dignity of the procedure, especially
where convulsions or seizures could be misperceived
as signs of consciousness or distress.” Ante, at 19. 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 isactually experiencing excruciating pain that no one can
detect.3 Nor is there any necessity for pancuronium bro
——————
person shall euthanize any dog or cat with T–61, curare, any curariform
drug, any neuro-muscular blocking agent or any other paralyzingdrug”); Tenn. Code Ann. §44–17–303(c) (2007) (“Succinylcholine chloride,
curare, curariform mixtures . . . or any substance that acts as aneuromuscular blocking agent . . . may not be used on any non-livestockanimal for the purpose of euthanasia”). According to a recent study,
not a single State sanctions the use of a paralytic agent in the administration
of animal euthanasia, 9 States explicitly ban the use of suchdrugs, 13 others ban it by implication—i.e., by mandating the use of
nonparalytic drugs, 12 arguably ban it by reference to the AVMA
guidelines, and 8 others express a strong preference for use of nonparalytic
drugs. Anesthetizing the Public Conscience, supra, at ____, and
App.1.
3Indeed, the decision by prison administrators to use the drug on
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STEVENS, J., concurring in judgment
mide to be included in the cocktail to inhibit respiration
when it is immediately followed by potassium chloride,
which causes death quickly by stopping the inmate’sheart.
Moreover, there is no nationwide endorsement of the
use of pancuronium bromide that merits any special presumption
of respect. While state legislatures have approved
lethal injection as a humane method of execution,
the majority have not enacted legislation specificallyapproving the use of pancuronium bromide, or any given
combination of drugs.4 And when the Colorado Legisla
——————
humans for aesthetic reasons is not supported by any consensus of
medical professionals. To the contrary, the medical community hasconsidered—and rejected—this aesthetic rationale for administeringneuromuscular blocking agents in end-of-life care for terminally illpatients whose families may be disturbed by involuntary movementsthat are misperceived as signs of pain or discomfort. As explained in an
amici curiae brief submitted by critical care providers and clinicalethicists, the medical and medical ethics communities have rejected
this rationale because there is a danger that such drugs will mask signs
that the patient is actually in pain. See Brief for Critical Care Providers
et al. as amici curiae.
4Of the 35 state statutes providing for execution by lethal injection,
only approximately one-third specifically approve the use of a chemicalparalytic agent. See Ark. Code Ann. §5–4–617 (2006); Idaho Code §19–
2716 (Lexis 2004); Ill. Comp. Stat., ch. 725, §5/119–5 (West 2006); Md.
Crim. Law Code Ann. §2–303 (Lexis Supp. 2007); Miss. Code Ann. §99–
19–51 (2007); Mont. Code Ann. §46–19–103 (2007); N. H. Rev. Stat.
Ann. §630:5 (2007); N. M. Stat. Ann. §31–14–11 (2000); N. C. Gen. Stat.
Ann. §15–187 (Lexis 2007); Okla. Stat., Tit. 22, §1014 (West 2001); Ore.
Rev. Stat. §137.473 (2003); Pa. Stat. Ann., Tit. 61, §3004 (Purdon 1999);
Wyo. Stat. Ann. §7–13–904 (2007). Twenty of the remaining States do
not specify any particular drugs. See Ariz. Rev. Stat. Ann. §13–704(West 2001); Cal. Penal Code Ann. §3604 (West 2000); Conn. Gen. Stat.
§54–100 (2007); Del. Code Ann., Tit. 11, §4209 (2006 Supp.); Fla. Stat.
§922.105 (2006); Ga. Code Ann. §17–10–38 (2004); Ind. Code §35–38–6–
1 (West 2004); Kan. Stat. Ann. §22–4001 (2006 Cum. Supp.); Ky. Rev.
Stat. Ann. §431.220 (West 2006); La. Stat. Ann. §15:569 (West 2005);
Mo. Rev. Stat. §546.720 (2007 Cum. Supp.); Nev. Rev. Stat. §176.355(2007); Ohio Rev. Code Ann. §2949.22 (Lexis 2006); S. C. Code Ann.
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STEVENS, J., concurring in judgment
ture focused on the issue, it specified a one-drug protocol
consisting solely of sodium thiopental. See Colo. Rev. Stat.
Ann. §18–1.3–1202 (2007).5 In the majority of States thatuse the three-drug protocol, the drugs were selected byunelected Department of Correction officials with no specialized
medical knowledge and without the benefit ofexpert assistance or guidance. As such, their drug selections
are not entitled to the kind of deference afforded
legislative decisions.
Nor should the failure of other state legislatures, or ofCongress, to outlaw the use of the drug on condemnedprisoners be viewed as a nationwide endorsement of anunnecessarily dangerous practice. Even in those States
where the legislature specifically approved the use of a
paralytic agent, review of the decisions that led to theadoption 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 alter
——————
§24–3–530 (2007); S. D. Codified Laws §23A–27A–32 (Supp. 2007);
Tenn. Code Ann. §40–23–114 (2006); Tex. Code Crim. Proc. Ann., Art.
43.14 (Vernon 2006 Supp. Pamphlet); Utah Code Ann. §77–18–5.5(Lexis Supp. 2007); Va. Code Ann. §53.1–234 (Lexis Supp. 2007); Wash.
Rev. Code §10.95.180 (2006).
5Colorado’s statute provides for “a continuous intravenous injectionof a lethal quantity of sodium thiopental or other equally or more
effective substance sufficient to cause death.” §18–1.3–1202. Despite
the fact that the statute specifies only sodium thiopental, it appears
that Colorado uses the same three drugs as other States. See Denno,
The Lethal Injection Quandary: How Medicine Has Dismantled the
Death Penalty, 76 Ford. L. Rev. 49, 97, and n. 322 (2007).
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STEVENS, J., concurring in judgment
native.6 App. 756; see also post, at 5 (GINSBURG, J.,
dissenting).
New Jersey’s experience with the creation of a lethalinjection protocol is illustrative. When New Jersey restored
the death penalty in 1983, its legislature “fell inline” 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 concern. The Capital
Sentencing Unit’s chief doctor, for example, warned the
Assistant Commissioner that he had “‘concerns . . . in
regard to the chemical substance classes from which the
lethal substances may be selected.’” Edwards, New Jersey’s
Long Waltz With Death, 170 N. J. L. J. 657, 673(2002).7 Based on these concerns, the former DOC Commissioner
lobbied the legislature to amend the lethal
injection statute to provide DOC with discretion to selectmore humane drugs: “‘[We wanted] a generic statement,
like “drugs to be determined and identified by the commis
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6Notably, the Oklahoma medical examiner who devised the protocolhas disavowed the use of pancuronium bromide. When asked in a
recent interview why he included it in his formula, he responded: “‘It’s
a good question. If I were doing it now, I would probably eliminate it.’ ”
E. Cohen, Lethal injection creator: Maybe it’s time to changethe formula,
http://www.cnn.com/2007/HEALTH/04/30/lethal.injection/index.html.
7Officials of the DOC had before them an advisory paper submittedby a group of New York doctors recommending sodium thiopental“ ‘without the addition of other drugs,’ ” and the supervisor of the
Health Services Unit was informed in a memo from a colleague thatpancuronium bromide “ ‘will cause paralysis of the vocal chords and
stop breathing, and hence could cause death by asphyxiation.’ ” Edwards,
170 N. J. L. J., at 673.
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STEVENS, J., concurring in judgment
sioner, or the attorney general, or the Department of
Health”’. . . . ‘Who knew what the future was going to
bring?’” Ibid. And these concerns likely motivated theDOC’s decision to adopt a protocol that omitted pancuronium
bromide—despite the legislature’s failure to act
on the proposed amendment. See Denno, When Legislatures
Delegate Death: The Troubling Paradox Behind
State Uses of Electrocution and Lethal Injection and WhatIt Says About Us, 63 Ohio St. L. J. 63, 117–118, 233 (2002)
(explaining that the New Jersey protocol in effect in 2002called for use of a two-drug cocktail consisting of sodium
thiopental and potassium chloride).
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 usedin the lethal injection protocol were undetermined:
“Those substances have not been determined at this
point because when and if an execution is scheduled
the [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 usthe opportunity at that point to decide which would be
the most humane.
“And things change. We understand that the stateof-
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
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STEVENS, J., concurring in judgment
specialized medical knowledge and with the benefit ofsome expert assistance and guidance—focused on theissue, it disagreed with the legislature’s “stereotypedreaction,” Mathews, 427 U. S., at 520, 521 (STEVENS, J.,
dissenting), and specified a two-drug protocol that omitted
pancuronium bromide.8
In my view, therefore, States wishing to decrease therisk that future litigation will delay executions or invalidate
their protocols would do well to reconsider their
continued use of pancuronium bromide.9
II
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 processthat weighs the costs and risks of administering that
penalty against its identifiable benefits, and rest in parton a faulty assumption about the retributive force of the
death penalty.
——————
8Further, concerns about this issue may have played a role in NewJersey’s subsequent decisions to create a New Jersey Death PenaltyStudy Commission in 2006, and ultimately to abolish the death penaltyin 2007.
9For similar reasons, States may also be well advised to reconsider
the sufficiency of their procedures for checking the inmate’s consciousness.
See, post, at 5–10 (GINSBURG, J., dissenting).
JUSTICE ALITO correctly points out that the Royal Dutch Society forthe Advancement of Pharmacy recommends pancuronium bromide “as
the second of the two drugs to be used in cases of euthanasia.” Ante, at
7 (concurring opinion). In the Netherlands, however, physicians withtraining in anesthesiology are involved in assisted suicide. For reasons
JUSTICE ALITO details, see ante, at 2–4, physicians have no similar role
in American executions. When trained medical personnel administer
anesthesia and monitor the individual’s anesthetic depth, the serious
risks that concern me are not presented.
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STEVENS, J., concurring in judgment
In Gregg v. Georgia, 428 U. S. 153 (1976), we explainedthat 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 asufficient justification for the death penalty.10 Moreover, a
recent poll indicates that support for the death penaltydrops significantly when life without the possibility ofparole is presented as an alternative option.11 And the
available sociological evidence suggests that juries are less
likely to impose the death penalty when life without parole
is available as a sentence.12
——————
10Forty-eight States now have some form of life imprisonment without
parole, with the majority of statutes enacted within the last two
decades. See Note, A Matter of Life and Death: The Effect of LifeWithout-
Parole Statutes on Capital Punishment, 119 Harv. L. Rev.
1838, 1839, 1841–1844 (2006).
11See R. Dieter, Sentencing For Life: Americans Embrace Alternatives
to the Death Penalty (Apr. 1993),
http://www.deathpenaltyinfo.
org/article.php?scid=45&did=481.
12In one study, potential capital jurors in Virginia stated that knowing
about the existence of statutes providing for life without the possibility
of parole would significantly influence their sentencing decision.
In another study, a significant majority of potential capital jurors in
Georgia said they would be more likely to select a life sentence over a
death sentence if they knew that the defendant would be ineligible forparole for at least 25 years. See Note, 119 Harv. L. Rev., at 1845.
Indeed, this insight drove our decision in Simmons v. South Carolina,
512 U. S. 154 (1994), that capital defendants have a due process rightto require that their sentencing juries be informed of their ineligibility
BAZE v. REES
STEVENS, J., concurring in judgment
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.13 In the absence
of such evidence, deterrence cannot serve as a sufficient
penological justification for this uniquely severe and
irrevocable punishment.
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
enthusiasm for the death penalty.14 As Lord
Justice Denning argued in 1950, “‘some crimes are sooutrageous that society insists on adequate punishment,
because the wrong-doer deserves it, irrespective of
whether it is a deterrent or not.’” See Gregg, 428 U. S., at
184, n. 30. Our Eighth Amendment jurisprudence hasnarrowed the class of offenders eligible for the death pen
——————
for parole.
13Admittedly, there has been a recent surge in scholarship assertingthe deterrent effect of the death penalty, see, e.g., Mocan & Gittings,
Getting Off Death Row: Commuted Sentences and the Deterrent Effectof Capital Punishment, 46 J. Law & Econ. 453 (2003); Adler & Summers,
Capital Punishment Works, Wall Street Journal, Nov. 2, 2007,
p. A13, but there has been an equal, if not greater, amount of scholarship
criticizing the methodologies of those studies and questioning the
results, see, e.g., Fagan, Death and Deterrence Redux: Science, Law
and Causal Reasoning on Capital Punishment, 4 Ohio St. J. Crim. L.
255 (2006); Donohue & Wolfers, Uses and Abuses of Empirical Evidencein the Death Penalty Debate, 58 Stan. L. Rev. 791 (2005).
14Retribution is the most common basis of support for the death penalty.
A recent study found that 37% of death penalty supporters cited
“an eye for an eye/they took a life/fits the crime” as their reason for
supporting capital punishment. Another 13% cited “They deserve it.”
The next most common reasons—“sav[ing] taxpayers money/costassociated with prison” and deterrence—were each cited by 11% of
supporters. See Dept. of Justice, Bureau of Justice Statistics, Source-
book of Criminal Justice Statistics 147 (2003) (Table 2.55), online athttp://www.albany.edu/sourcebook/pdf/t255.pdf.
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STEVENS, J., concurring in judgment
alty to include only those who have committed outrageouscrimes defined by specific aggravating factors. It is the
cruel treatment of victims that provides the most persuasive
arguments for prosecutors seeking the death penalty.
A natural response to such heinous crimes is a thirst for
vengeance.15
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 publicand painful retribution towards ever more humane formsof punishment. State-sanctioned killing is therefore becoming
more and more anachronistic. In an attempt tobring executions in line with our evolving standards of
decency, we have adopted increasingly less painful methods
of execution, and then declared previous methodsbarbaric and archaic. But by requiring that an execution
be relatively painless, we necessarily protect the inmatefrom enduring any punishment that is comparable to thesuffering inflicted on his victim.16 This trend, while appropriate
and required by the Eighth Amendment’s prohibition
on cruel and unusual punishment, actually under
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15For example, family members of victims of the Oklahoma Citybombing called for the Government to “ ‘put [Timothy McVeigh] inside a
bomb and blow it up.’ ” Walsh, One Arraigned, Two Undergo Questioning,
Washington Post, Apr. 22, 1995, pp. A1, A13. Commentators at the
time noted that an overwhelming percentage of Americans felt thatexecuting McVeigh was not enough. Linder, A Political Verdict:
McVeigh: When Death Is Not Enough, L. A. Times, June 8, 1997, p. M1.
16For example, one survivor of the Oklahoma City bombing expressed
a belief that “ ‘death by [lethal] injection [was] “too good” for McVeigh.’ ”
A. Sarat, When the State kills: Capital Punishment and the AmericanCondition 64 (2001). Similarly, one mother, when told that her child’skiller would die by lethal injection, asked: “Do they feel anything? Do
they hurt? Is there any pain? Very humane compared to what they’ve
done to our children. The torture they’ve put our kids through. I think
sometimes it’s too easy. They ought to feel something. If it’s fire
burning all the way through their body or whatever. There ought to besome little sense of pain to it.” Id., at 60 (emphasis deleted).
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STEVENS, J., concurring in judgment
mines the very premise on which public approval of the
retribution rationale is based. See, e.g., Kaufman-Osborn,
Regulating Death: Capital Punishment and the LateLiberal State, 111 Yale L. J. 681, 704 (2001) (explaining
that there is “a tension between our desire to realize the
claims of retribution by killing those who kill, and . . . a
method [of execution] that, because it seems to do no harmother than killing, cannot satisfy the intuitive sense of
equivalence that informs this conception of justice”); A.
Sarat, When the State Kills: Capital Punishment and the
American Condition 60–84 (2001).
Full recognition of the diminishing force of the principalrationales for retaining the death penalty should lead thisCourt 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.17
——————
17For a discussion of the financial costs as well as some of the less
tangible costs of the death penalty, see Kozinski & Gallagher, Death:
The Ultimate Run-On Sentence, 46 Case W. Res. L. Rev. 1 (1995)
(discussing, inter alia, the burden on the courts and the lack of finality
for victim’s families). Although a lack of finality in death cases mayseem counterintuitive, Kozinski and Gallagher explain:
“Death cases raise many more issues, and far more complex issues,
than other criminal cases, and they are attacked with more gusto and
reviewed with more vigor in the courts. This means there is a strongpossibility that the conviction or sentence will be reconsidered—
seriously reconsidered—five, ten, twenty years after the trial. . . . One
has to wonder and worry about the effect this has on the families of thevictims, who have to live with the possibility—and often the reality—ofretrials, evidentiary hearings, and last-minute stays of execution fordecades after the crime.” Id., at 17–18 (footnotes omitted).
Thus, they conclude that “we are left in limbo, with machinery that isimmensely expensive, that chokes our legal institutions so they areimpeded from doing all the other things a society expects from its
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STEVENS, J., concurring in judgment
III
“[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 ofthe Eighth Amendment is, in short, against ‘that which is
excessive’”). Our cases holding that certain sanctions are
“excessive,” and therefore prohibited by the EighthAmendment, have relied heavily on “objective criteria,”
such as legislative enactments. See, e.g., Solem v. Helm,
463 U. S. 277, 292 (1983); Harmelin v. Michigan, 501 U. S.
957 (1991); United States v. Bajakajian, 524 U. S. 321
(1998). In our recent decision in Atkins v. Virginia, 536
U. S. 304 (2002), holding that death is an excessive sanction
for a mentally retarded defendant, we also relied
heavily on opinions written by Justice White holding that
the death penalty is an excessive punishment for thecrime of raping a 16-year-old woman, Coker v. Georgia,
——————
courts, [and] that visits repeated trauma on victims’ families . . . .” Id.,
at 27–28; see also Block, A Slow Death, N. Y. Times, Mar. 15, 2007,
p. A27 (discussing the “enormous costs and burdens to the judicial
system” resulting from the death penalty).
Some argue that these costs are the consequence of judicial insistence
on unnecessarily elaborate and lengthy appellate procedures. To the
contrary, they result “in large part from the States’ failure to applyconstitutionally sufficient procedures at the time of initial [convictionor] sentencing.” Knight v. Florida, 528 U. S. 990, 998 (1999) (BREYER,
J., dissenting from denial of certiorari). They may also result from a
general reluctance by States to put large numbers of defendants to
death, even after a sentence of death is imposed. Cf. Tempest, Death
Row Often Means a Long Life; California condemns many murderers,
but few are ever executed, L. A. Times, Mar. 6, 2006, p. B1 (noting that
California death row inmates account for about 20% of the Nation’s
total death row population, but that the State accounts for only 1% of
the Nation’s executions). In any event, they are most certainly not thefault of judges who do nothing more than ensure compliance with
constitutional guarantees prior to imposing the irrevocable punishment
of death.
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STEVENS, J., concurring in judgment
433 U. S. 584 (1977), and for a murderer who did not
intend to kill, Enmund v. Florida, 458 U. S. 782 (1982). In
those opinions we acknowledged that “objective evidence,
though of great importance, did not ‘wholly determine’ thecontroversy, ‘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.’” Atkins, 536 U. S., at 312 (quoting
Coker, 433 U. S., at 597 (plurality opinion)).
Justice White was exercising his own judgment in 1972when 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 arriveat 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 isthe authorized penalty.” Id., at 313. I agree with JusticeWhite that there are occasions when a Member of this
Court has a duty to make judgments on the basis of data
that falls short of absolute proof.
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 JusticeDouglas’ opinion in Furman, id., at 240–257 (concurring
Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
opinion), of arbitrary application identified by JusticeStewart, id., at 306 (same), and of excessiveness identified
by Justices Brennan and Marshall. In subsequent years anumber 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 caseshave endorsed procedures that provide less protections to
capital defendants than to ordinary offenders.
Of special concern to me are rules that deprive thedefendant 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 bereturned by 12 randomly selected jurors should be viewedas objective evidence supporting the conclusion that thepenalty is excessive.18
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 crime does not go unpunished may overcomeresidual doubt concerning the identity of the offender.
Our former emphasis on the importance of ensuring that
decisions in death cases be adequately supported by reason
rather than emotion, Gardner, 430 U. S. 349, has been
undercut by more recent decisions placing a thumb on the
——————
18See Uttecht v. Brown, 551 U. S. 1, ___ (2007) (slip op., at 1)
(STEVENS, J., dissenting) (explaining that “[m]illions of Americansoppose the death penalty,” and that “[a] cross section of virtually everycommunity in the country includes citizens who firmly believe thedeath penalty is unjust but who nevertheless are qualified to serve asjurors in capital cases”).
BAZE v. REES
STEVENS, J., concurring in judgment
prosecutor’s side of the scales. Thus, in Kansas v. Marsh,
548 U. S. 163 (2006), the Court upheld a state statute thatrequires imposition of the death penalty when the juryfinds that the aggravating and mitigating factors are inequipoise. And in Payne v. Tennessee, 501 U. S. 808
(1991), the Court overruled earlier cases and held that
“victim impact” evidence relating to the personal characteristics
of the victim and the emotional impact of thecrime on the victim’s family is admissible despite the fact
that it sheds no light on the question of guilt or innocence
or on the moral culpability of the defendant, and thusserves no purpose other than to encourage jurors to makelife or death decisions on the basis of emotion rather than
reason.
A third significant concern is the risk of discriminatoryapplication of the death penalty. While that risk has been
dramatically reduced, the Court has allowed it to continueto play an unacceptable role in capital cases. Thus, in
McCleskey v. Kemp, 481 U. S. 279 (1987), the Court uphelda 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.
___ (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 personwho murders a white victim than against a defendant inany other racial combination”).
Finally, given the real risk of error in this class of cases,
the irrevocable nature of the consequences is of decisiveimportance to me. Whether or not any innocent defendants
have actually been executed, abundant evidenceaccumulated in recent years has resulted in the exoneration
of an unacceptable number of defendants found guilty
of capital offenses. See Garrett, Judging Innocence, 108
Cite as: 553 U. S. ____ (2008)
STEVENS, J., concurring in judgment
Colum. L. Rev. 55 (2008); Risinger, Innocents Convicted:
An Empirically Justified Factual Wrongful ConvictionRate, 97 J. Crim. L. & C. 761 (2007). The risk of executing
innocent defendants can be entirely eliminated by treating
any penalty more severe than life imprisonment without
the possibility of parole as constitutionally excessive.
In sum, just as Justice White ultimately based his conclusion
in Furman on his extensive exposure to countlesscases 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 “thepointless 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). 19
IV
The conclusion that I have reached with regard to the
constitutionality of the death penalty itself makes my
——————
19Not a single Justice in Furman concluded that the mention of deprivation
of “life” in the Fifth and Fourteenth Amendments insulated the
death penalty from constitutional challenge. The five Justices who
concurred in the judgment necessarily rejected this argument, and eventhe four dissenters, who explicitly acknowledged that the death penaltywas not considered impermissibly cruel at the time of the framing,
proceeded to evaluate whether anything had changed in the intervening
181 years that nevertheless rendered capital punishment unconstitutional.
Furman, 408 U. S., at 380–384 (Burger, C.J., joined byBlackmun, Powell, and Rehnquist, JJ., dissenting); see also id., at 420
(“Nor are ‘cruel and unusual punishments’ and ‘due process of law’
static concepts whose meaning and scope were sealed at the time oftheir writing”) (Powell, J., joined by Burger, C.J., and Blackmun and
Rehnquist, JJ., dissenting). And indeed, the guarantees of proceduralfairness contained in the Fifth and Fourteenth Amendments do not
resolve the substantive questions relating to the separate limitationsimposed by the Eighth Amendment.
BAZE v. REES
STEVENS, J., concurring in judgment
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 aframework 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 bypetitioners fails to prove that Kentucky’s lethal injection
protocol violates the Eighth Amendment. Accordingly, I
join the Court’s judgment.
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