JACKI LYDEN, Host:

An extraordinary exchange took place at the U.S. Supreme Court last week between a senior justice, John Paul Stevens, and Justice Antonin Scalia. The subject was the death penalty, a topic that's caused more than a few justices to change their minds over the years. NPR's legal affairs correspondent Nina Totenberg has more.

NINA TOTENBERG: You might think that legal discourse is tame, even boring. Well, read these opinions and think again. They came in a case testing whether execution by lethal injection, as carried out in most death penalty states, is cruel and unusual punishment. The court, including both Stevens and Scalia, said they are Constitutional, but they agreed on nothing else at all.

Stevens, who served on the court for 33 years and turns 88 today, said that after seeing thousands of death penalty cases and systems over the years, he has now concluded that the death penalty is unconstitutional. But, he added, he's bound by the court's precedents upholding capital punishment and will adhere to them, including in the lethal injection case.

Ironically, Stevens was partly responsible for one of those key precedents. In 1976 he wrote part of the opinion ending a moratorium on the death penalty and allowing it to be used again, if special procedures were used to ensure that only criminals guilty of the most heinous crimes were executed.

We identified three societal purposes for the death penalty back then, Stevens observed - incapacitation, deterrence and retribution. Incapacitation is no long much of an issue, he said, because most states now have life in prison without parole, which they didn't in 1976. As for deterrence, he said, despite 30 years of research, there is no reliable statistical evidence that capital punishment in fact deters offenders.

That, he said, leaves retribution as the only justification and Stevens suggested that retribution may not be enough to justify capital punishment in light of the possibility of the wrong person being executed, the financial and resource burden on the court and the lack of finality of victims' families who often have to suffer through decade of appeals before a case is resolved.

In the last analysis, said Stevens, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such negligible returns to the state is patently excessive and violates the Constitution's ban on cruel and unusual punishment.

Justice Scalia responded with a rhetorical skewer. Hardest to take, he said , is Justice Stevens' bemoaning of the enormous costs of the death penalty, since as Scalia put it, those costs are largely the creation of Justice Stevens and other justices who have encumbered capital punishment with unwarranted restrictions found nowhere in the Constitution.

S: 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, in state legislature or Congress, is, it appears of little consequence.

Nina Totenberg, NPR News, Washington.

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