Retention of the death penalty, the Justice has discerned, is likely "the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of [that] penalty against its identifiable benefits."
The underlying theme of much of his concurrence is that the criminal justice landscape has changed and, therefore, our current policy should change with it. "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." Stevens takes to task each justification relied upon by the Court in Gregg. First, because the imposition of life without the possibility of parole is now available in almost all states, he asserts that the death penalty can no longer be justified as a means for incapacitating a dangerous killer. Second, he points to the consistent lack of reliable, hard data that the death penalty actually deters potential offenders. Left then with only retribution as the "primary rationale" for keeping the penalty.Stevens notes that the natural "thirst for vengeance" inspired by heinous crimes, can never be emotionally served by that which is constitutionally-required. Thus necessarily in-equivalent, the method of "simple killing" by lethal injection.
Stevens further questions whether the protections that the Gregg Court assumed would be put in place have been effective - safeguards intended to "avoid the danger of the discriminatory application" and to prevent arbitrary and excessive use of the punishment. He makes clear that the underpinnings of these protections have been eroded both by an undeniably defective criminal justice system and the Court itself. He points to the Court's own decisions finding it constitutional 1) for jurors to be excluded from capital trials because they oppose the death penalty, 2) for evidence to be introduced relating to personal character of the victim, and 3) for family members of the victim to give emotional testimony about their horrible loss. He admits the "strong probability that [sentencing juries] are improperly influenced by the race of the victim" and laments the Court's failure to address this despite having been presented with compelling data over the years. Yet of utmost importance to Justice Stevens is the "abundant evidence accumulated in recent years [which] has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses." Simply put, eliminating the death penalty would eliminate the risk of executing the innocent entirely.
Perhaps the most compelling realization in Justice Stevens' opinion, and one shared by former Justice Byron White, is that "[t]here 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." Both men arrive at the conclusion that the death penalty represents "the pointless and needless extinction of life" based in large part on their "extensive exposure to countless cases for which death is the authorized penalty." Like Justice Harry Blackmun before him, Justice Stevens seems weary from "tinkering with the machinery of death."
Sadly, only a handful of citizens will ever receive the exception education about the death penalty that comes with years of service on the United States Supreme Court. Yet, we ordinary citizens can and should heed their deliberations as important truths about capital punishment.