In his concurring opinion in Baze v. Rees, Justice Stevens expressed his belief that capital punishment was unconstitutional.  Mind you, he concurred that lethal injection was fine anyway.  This gave rise to our favorite Utah Lawprof and victims’ rights advocate, Volokh Conspirator Paul Cassell,  ripping the old man a new one for his views:

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.

Harsh words indeed.  But Alice Ristroph at  Concurring Opinions wasn’t about to let this former federal judge off the hook that easily, noting that Judge Cassell was guilty of the same crime:

When I read Stevens’s concurrence last week, the last paragraph reminded me of one of then-Judge Cassell’s opinions. In 2004, as a federal judge in the district of Utah, Cassell authored a widely noted opinion in United States v. Angelos (345 F. Supp. 2d 1227). Weldon Angelos was a first-time offender convicted of selling marijuana. The government applied a federal firearms statute with severe mandatory minimums, thus ensuring what was almost certainly an effective life sentence for Angelos. Judge Cassell wrote, “[t]he court believes that to sentence Mr. Angelos to prison for the rest of his life is unjust, cruel, and even irrational.” But out of deference to Congress and to existing constitutional precedents, Judge Cassell “reluctantly” applied the unjust, cruel, and irrational mandatory minimum and sentenced Angelos to 55 years and a day.

Ouch.  That’s the problem with writing opinions when you’re a federal judge.  They keep all these books around forever, and later on people can still find them.

In an effort to remove the petard from whence it was hoisted, Paul Cassell responds:

Perhaps I could have been clearer in my earlier post, but I have no problem with any judge expressing their point of view of constitutional or other issues. I did that a few times myself as a judge, as Ristroph points out. My problem with Justice Stevens’ views that the death penalty is (now) unconstitutional (and I think Orin’s as well) is that Stevens is simply wrong on the merits. Judges certainly have a right to speak on legal issues … but they should be right on those issues.

Talk about going from the frying pan into the fire.  So it’s not wrong for Justice Stevens to express his opinion.  It’s that his opinion that the death penalty violates the 8th Amendment prohibition on cruel and unusual punishment is simply wrong.  So says Paul Cassell.

Thanks for clearing that up.