Jonah, I thought you might be interested in this. The Supreme Court decided today that Kentucky's lethal injection procedures don't violate the eighth amendment. Justice Stevens, writing separately, essentially rejected any reliance on any other evidence except for his own opinion on whether the death penalty is constitutional. Justice Scalia called him out as follows:
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 14 (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 17 (emphasis
added).
Purer expression cannot be found of the principle of rule
by judicial fiat. 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 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is
relegated to a footnote. Ante, at 10, 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 11. It is
JUSTICE STEVENS' experience that reigns over all.
