However, true to his legal roots, he does make a sociological error in his conclusion, that the social function of capitalism is an "inadequate justification." Political exchange and cultural consumption are, in fact, solidarity generating forms that exist and function completely divorced from the morality of their substance. Ex opere operato. In other words, the ritual of the dialogue is unifying even if the message is divisive. This is a fairly basic sociological principle that is too often ignored in contentious debates like this.
The fourth category [of persons in whose benefits legislative imposition of death eligibility must be rooted to be reasonable] consists of the general public. If Garland’s comprehensive analysis is accurate—that the primary public benefits of the death penalty are "political exchange and cultural consumption"—and as long as the remedy of life imprisonment without the possibility of parole is available, those partisan and cultural considerations provide woefully inadequate justifications for putting anyone to death.
That said, I certainly agree with Stevens substantively, even if not formally. Capital punishment--at least as it is practiced in this country--is unjust.