Justice John Paul Stevens, the Supreme Court's most senior member, took aim at the entire system of capital punishment Wednesday, writing in an opinion that it was a "pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes."
Stevens' stance came to light in his opinion on Kentucky's lethal injection protocol, which the court, including Stevens, upheld Wednesday in a 7-2 decision. There had been an unofficial moratorium on executions while the court mulled the case.
It is the first time 87-year-old Stevens has called on states to stop executions entirely.
Stevens wrote, "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 essence, Stevens has sent a signal that, while he recognizes the court has, in the past, found the death penalty to be constitutional, he thinks it's now time for state legislatures, Congress and the courts to reconsider.
He wrote how current attempts to "retain the death penalty as part of our law" are the "product of habit and inattention, rather than an acceptable deliberative process" that weighs the costs of administering the penalty against its benefits.
Wednesday's disclosure marks an evolution of Stevens' thoughts.
In 1976, only months after he had been nominated to the high court by President Gerald Ford, Stevens voted to reauthorize the death penalty in Gregg v. Georgia. Four years earlier, the court had invalidated it.
In 2002 he wrote an opinion in Atkins v. Virginia, which halted the death penalty for state execution of mentally retarded criminals. In 2005, he voted to end the death penalty for juveniles.
In speeches, Stevens has hinted that he found problems with the way the death penalty was administered, but Wednesday marked the first time he has used an opinion to clarify his position.
In an August 2005 speech before the American Bar Association, Stevens cited reports that death sentences had been imposed erroneously. "That evidence is profoundly significant," he said, "not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice."
No other sitting justice chose to sign on to his opinion, but conservative Justice Antonin Scalia was quick to respond to Stevens' new position.
Writing separately, he chastised Stevens, saying, "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?"
Scalia, who was joined in his opinion by Justice Clarence Thomas, added, "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 pre-eminently not a matter to be resolved here. And especially now, when it is explicitly permitted by the Constitution."
Stevens joins only three other justices in history — William J. Brennan, Thurgood Marshall and Harry Blackmun — who voiced their opposition to the death penalty.
Blackmun made his opinion known shortly before his retirement, writing, "I no longer shall tinker with the machinery of death."
Stevens, who turns 88 later in the week, shows no sign of retiring.