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August 25, 2013

"Fifty years ago this month, a young man and an older man sat down and began to plot the end of the death penalty in America."

The title of this post is the first sentence of this interesting piece by Jesse Wegman appearing in the Review section of today's New York Times under the headline "The Death Memo."  Here are more excerpts from what follows:

It was an audacious idea at the time — capital punishment was right there in the Constitution, the Supreme Court had no problem with it, and public opinion remained strongly in its favor.

But to many people, the summer of 1963 represented a new world, one alive with dreams of fairness and equality. That August, across the Mall from the Lincoln Memorial, Supreme Court Justice Arthur Goldberg, a strong opponent of capital punishment, charged his 24-year-old law clerk, Alan Dershowitz, to develop the most compelling legal argument that the death penalty violated the Constitution.

“He said, ‘Don’t find me mass murderers, don’t find me serial killers,’” Mr. Dershowitz, the well-known defense lawyer, recalled recently. Mr. Dershowitz’s resulting memo, described in Evan Mandery’s excellent new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” drew particular attention to racial disparities in the death penalty’s application. Justice Goldberg was impressed, and he worked the memo into a dissent. But so as not to scare off his colleagues, he removed almost every reference to race.

Fifty years later, the death penalty lives on. The Supreme Court suspended it in 1972, holding that the arbitrariness of its application constituted cruel and unusual punishment. In 1976 the court reinstated it.  More than 1,300 people have been executed since, but the rate has fallen over the last decade.

Some justices have categorically opposed capital punishment, like William Brennan Jr. and Thurgood Marshall.  Others have maintained it is indisputably constitutional, like Antonin Scalia and Clarence Thomas.  But as Mr. Mandery notes, three justices who voted to reinstate it later changed their minds....  These justices, more than those with unwavering positions, may serve as a metaphor for tracking our “evolving standards of decency.”

Arthur Goldberg died in 1990. Mr. Dershowitz, whom he liked to call his clerk for life, remembered one of their final conversations. “I said to him, ‘You’re Moses and you haven’t been given the right to cross over to Israel. You’re going to die on Mount Nebo.’ But I promised him in my lifetime we’d see the end of what he did.”

So how will it end? “It’s going to happen the way things always happen at the court,” Mr. Dershowitz said. “The court will appear to be leading, but it will be following.”

August 25, 2013 at 12:07 PM | Permalink

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Comments

I find it ironic and saddening and maddening. Jews lead the abolition way. It is as if they learned nothing. Imagine our world if the Jews had killed Hitler, his entire homosexual gang, and the 20 families that sponsored him in 1933. To deter. Not only constitutional, a duty if duty comes from foreseeability, a moral imperative, a necessity to survive.

This sad story is another expression of the term of art, lawyer dumbass.

Posted by: Supremacy Claus | Aug 25, 2013 12:47:24 PM

There were no facts about the future in 1963, and there are none now. It looked at the time that the DP was on the way out. Well.....uh............

Executions have fallen off basically because the murder rate has fallen off, so a degree of complacency has set in. If and when murder increases again, enthusiasm for the DP (already supported by better than 2-1) is very likely to increase again, too, just as it did in the 70's after the murder rate shot up.

I had to laugh, though, when Justice Goldberg is recalled as saying, "Don’t find me mass murderers, don’t find me serial killers." The Justice was wise: Abolitionism always does best when some unpleasant realities are swept under the rug.

Intellectually honest people, however, might want to ask themselves whether they should buy the arguments of the advocates of X (no matter what X is) when said advocates find sweeping-under-the-rug to be a useful tactic.

Posted by: Bill Otis | Aug 25, 2013 2:39:27 PM

Evan Mandery has also put out a compilation ("Capital Punishment: A Balanced Examination") of various views and has written a few satirical novels.

Posted by: Joe | Aug 25, 2013 3:36:17 PM

Mr. Bill is right:

"Intellectually honest people, however, might want to ask themselves whether they should buy the arguments of the advocates of X (no matter what X is) when said advocates find sweeping-under-the-rug to be a useful tactic." (X = 311 EXONERATED, 18 from death row.) *


* "It's an odd form of debate for the proponents of X to say, 'It's not so easy to show X, therefore you must believe me when I say X.'" - Bill Otis, May 6, 2012 8:22:58 PM.

Posted by: George | Aug 25, 2013 6:31:14 PM

What an inspiring story! How two men set about to eliminate a part of the Constitution and deprive the people of their voice!

Posted by: Thinkaboutit | Aug 25, 2013 8:29:28 PM

Thinkaboutit --

Nailed it.

Posted by: Bill Otis | Aug 25, 2013 9:18:32 PM

George --

Speaking of stuff that gets swept under the rug, would you care to give us your take on the Roger Keith Coleman innocence hoax? Your side promoted it for at least ten years, but, when it was exploded as a pack of lies, under the rug it went. My goodness!

Q: Will you now publicly admit that it was a fraud?

A: Of course you're not going to admit it, because under-the-rug is at least as good a tactic for you as it was for Justice Goldberg.

Posted by: Bill Otis | Aug 25, 2013 9:24:14 PM

Mr. Bill: "Q: Will you now publicly admit that it was a fraud?"

Of course not because my side, me, never claimed he was innocent so I could not commit any fraud on the subject. Your straw men are getting too easy.

George lifts the swept under rug and behold!

X = 311 EXONERATED, 18 from death row.

Posted by: George | Aug 25, 2013 11:38:22 PM

If there is ever a time to kill (and I firmly believe that there is) then the death penalty should still be a viable option for states. The real question is when it should be applied.

Posted by: Matt Raby | Aug 26, 2013 8:29:56 AM

"The real question is when it should be applied."

That also changed since 1963.

Posted by: Joe | Aug 26, 2013 11:38:06 AM

Joe --

"That also changed since 1963."

And changed back in 1976, and ever since.

Posted by: Bill Otis | Aug 26, 2013 12:53:25 PM

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