John Paul Stevens

“ 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]
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. ”

“ 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 the crime 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 thus serves no purpose other than to encourage jurors to make life or death decisions on the basis of emotion rather than reason.
A third significant concern is the risk of discriminatory application of the death penalty. ”

“ But by requiring that an execution be relatively painless, we necessarily protect the inmate from enduring any punishment that is [p. 81] comparable to the suffering inflicted on his victim. [16] This trend, while appropriate and required by the Eighth Amendment's prohibition on cruel and unusual punishment, actually undermines the very premise on which public approval of the retribution rationale is based. ”

“ Indeed, the decision by prison administrators to use the drug on humans for esthetic reasons is not supported by any consensus of medical professionals. To the contrary, the medical community has considered—and rejected—this esthetic rationale for administering neuromuscular blocking agents in end-of-life care for terminally ill patients whose families may be disturbed by involuntary movements that are misperceived as signs of pain or discomfort. ”

“ The prosecutorial concern that death verdicts would rarely be returned by 12 randomly selected jurors should be viewed as objective evidence supporting the conclusion that the penalty 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 [p. 85] crime does not go unpunished may overcome residual doubt concerning the identity of the offender. ”

“ In an attempt to bring executions in line with our evolving standards of decency, we have adopted increasingly less painful methods of execution, and then declared previous methods barbaric and archaic. ”

“ Retribution is the most common basis of support for the death penalty. A recent study found that 37% of death penalty supporters cited " [a] n eye for an eye/they took a life/fits the crime" as their reason for supporting capital punishment. ”

“ 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 prosecutor’s side of the scales. Thus, in Kansas v. Marsh, 548 U.S. 163 (2006) , the Court upheld a state statute that requires imposition of the death penalty when the jury finds that the aggravating and mitigating factors are in equipoise. ”

“ 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 drug should be proscribed when an animal's life is being terminated. [1] As a [p. 72] result of this understanding among knowledgeable professionals, several States—including Kentucky—have enacted legislation prohibiting use of the drug in animal euthanasia. ”

“ Americans Embrace Alternatives to the Death Penalty (Apr. 1993) , online at http://www.deathpenaltyinfo.org/article.php?scid=45&did=481.↑ . In 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 for parole for at least 25 years. ”

“ 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 specifically approving the use of pancuronium bromide, or any given combination of drugs. [4] And when the Colorado Legislature focused on the issue, it specified a one-drug protocol consisting solely of sodium thiopental. ”

“ 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 us the opportunity at that point to decide which would be the most humane. ”

“ Further, concerns about this issue may have played a role in New Jersey's subsequent decisions to create a New Jersey Death Penalty Study Commission in 2006, and ultimately to abolish the death penalty in 2007.↑ . For similar reasons, States may also be well advised to reconsider the sufficiency of their procedures for checking the inmate's consciousness. See post, at 118–123 (Ginsburg, J., dissenting) .↑ . Forty-eight States now have some form of life imprisonment without parole, with the majority of statutes enacted within the last two decades. ”

“ 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 may seem counterintuitive, Kozinski and Gallagher explain:↑ . See Uttecht v. Brown, 551 U.S. 1, 35 (2007) (Stevens, J., dissenting) (explaining that " [m] illions of Americans oppose the death penalty," and that " [a] cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases") .↑ . ”