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In Reversal, Stevens Says He Opposes Death Penalty

By Robert Barnes
Washington Post Staff Writer
Thursday, April 17, 2008

Justice John Paul Stevens was one of the co-authors of the Supreme Court's 1976 decision reinstating the death penalty, but he announced yesterday that he now believes capital punishment is unconstitutional.

The court's longest-serving justice, who will turn 88 on Sunday, said his experience on the court has convinced him that decisions by judges and legislators to retain the death penalty are born of "habit and inattention," rather than an "acceptable deliberative process" that balances costs with risks.

"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 wrote in an opinion that nonetheless concurred with the court's decision to uphold Kentucky's method of lethal injection.

Stevens said his vote was based on "respect" for the court's precedents that hold capital punishment is constitutional.

He wrote that he "relied on my own experience" in forming the decision. It drew a stinging and personal rebuttal from Justice Antonin Scalia, who was joined by Justice Clarence Thomas.

Scalia called Stevens's position "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."

He also mocked Stevens's reliance on his "experience."

"Purer expression cannot be found of the principle of rule by judicial fiat," Scalia wrote. "In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. . . . It is Justice Stevens' experience that reigns over all."

In the past, other justices -- William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun -- have declared their opposition to capital punishment. Stevens said he would "respect precedents that remain a part of our law."

Joseph Thai, an Oklahoma University law professor and former Stevens clerk, said Stevens's statement is the culmination of "the evolution of his position on the death penalty over the last 30 years or so."

"Nonetheless, it's still a pretty big step for him."

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