Cite as: 503 U. S. 653 (1992)
Stevens, J., dissenting
as much, the State itself could have avoided this last-minute litigation. In 1983, seven States authorized executions by exposure to cyanide gas. In that year, three Members of this Court indicated that that method of execution raised sufficiently serious questions under the Eighth Amendment to merit review by writ of certiorari. See Gray v. Lucas, 463 U. S. 1237 (1983). Thereafter, four States (Colorado, Mississippi, Oregon, and Wyoming) abandoned cyanide gas as a method of execution. In light of these events and the decisions of other legislatures, California as well should have revisited its 55-year-old statute.
More fundamentally, if execution by cyanide gas is in fact unconstitutional, then the State lacks the power to impose such punishment. Harris' delay, even if unjustified, cannot endow the State with the authority to violate the Constitution. It was this principle that animated Justice Harlan's opinion in Mackey v. United States, 401 U. S. 667, 692-693 (1971), and that a plurality of this Court embraced in Teague v. Lane, 489 U. S. 288, 306-307 (1989) (opinion of O'Connor, J.). As Harlan emphasized, there are some instances in which the State's interest in finality must give way. When the challenged conduct falls clearly beyond the State's legitimate power, "[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." 401 U. S., at 693. For these reasons, the State's interest in an immediate execution must yield to a deliberate and careful study of the merits of Harris' claims.
Accordingly, I respectfully dissent.
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