Courts, Legislators, and the Death Penalty

Press reports of the U.S. Supreme Court's ruling in Baze v. Rees, in which the Court ruled that Kentucky's lethal injection protocol does not violate 8th Amendment protections against cruel and unusual punishment, have given much attention to Justice John Paul Stevens opinion concurring in the judgement in the case. Justice Stevens argued that the manner in which the question in this case was resolved, as well as a changing societal understanding as to the value of the death penalty as a form of punishment, suggests that the entire question of the constitutionality of the death penalty needs to be revisited. In particular, the Justice concludes:

Full recognition of the diminishing force of the principal rationales for retaining the death penalty should lead this Court and legislatures to reexamine the question [of the continued use of the death penalty]. 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.

Justice Stevens is half right. There are certainly questions relative to the death penalty that merit serious attention by legislatures. Even in Texas, which has become famous (or infamous, depending on one's viewpoint) for its, uh, liberal use of the death penalty, some former proponents of that punishment in Dallas County are beginning to question it based on a growing number of people on death row that have been exonerated by DNA evidence.

However, the questions of "enormous costs" and "benefits" are policy matters that should be determined by legislatures, not by the courts. It is the illegitimate hijacking of these types of policy matters by unelected members of the court that has resulted in the bastardization and politicization of that branch of government. The courts should rule on matters of constitutionality. They should stay on the sidelines and allow the legislative and executive branches play their respective legitimate roles.