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June 1, 2017

"Will the Death Penalty Ever Die?"

The title of this post is the title of this new article in The New York Review of Books authored by Judge Jed Rakoff and reviewing of the book "Courting Death: The Supreme Court and Capital Punishment" by Carol and Jordan Steiker. Here is the intriguingly personal start to what then becomes a fairly standard review of the modern death penalty debate:

When my older brother Jan David Rakoff was murdered in 1985, bolts of anger and outrage not infrequently penetrated the black cloud of my grief.  Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead.

My brother, aged forty-four, had just begun to come into his own.  His innovative educational theories were starting to attract attention, and, just as important, he had come to terms with his homosexuality, which for many years he had struggled to suppress.  While on a trip to Manila, he engaged the services of a male prostitute, but at the end they quarreled over money.  In a fit of rage, the prostitute assaulted my brother with a pipe burner and an ice pick, bludgeoning and stabbing him to death.  To cover his tracks, the prostitute then set fire to the bungalow where my brother was staying; but the smoke attracted the attention of a security guard, who apprehended the fleeing assailant.  Later that evening, the prostitute provided a full written confession.

When my brother’s body arrived back in the United States, his face and head were barely recognizable, so vicious had been the assault.  My heart cried out for vengeance. Although the death penalty was then available in the Philippines, the defendant, taking full advantage of a corrupt legal system, negotiated a sentence of just three years in prison.  Had, instead, the prosecutor recommended the death penalty, I would have applauded.

It took many years before I changed my mind.

The law professors Carol S. Steiker and Jordan M. Steiker (sister and brother) have written a revealing book about the history of the death penalty in the US and, in particular, the continued difficulties the Supreme Court has had in attempting to regulate capital punishment so that it conforms to constitutional standards.  If I have a criticism of their otherwise trenchant account, it is of their failure to give more than passing attention to the moral outrage that provides much of the emotional support for the death penalty — outrage felt not only by the family and friends of a murder victim, but also by the many empathetic members of the public who, having learned the brutal facts of the murder, feel strongly that the murderer has forfeited his own right to live.

For the Steikers, the debate over the death penalty is “first and foremost” a symbolic battle over cultural values, with a strong current of racism running just below the surface.  This may well be true, but unless one acknowledges that rational human beings can feel such revulsion at the taking of an innocent life as to wish the taker dead, one misses part of the reason that the death penalty continues to enjoy significant popular support, even in many of the states and countries that have banned it.

June 1, 2017 at 03:50 PM | Permalink


Silly. No mention of the rent seeking theory, and of the fine tuning of the death penalty for its sole purpose, e.g. in Baze. These lawyers are too stupid for me, or anyone else with a high school diploma, who attended Economics class.

Posted by: David Behar | Jun 1, 2017 4:18:36 PM

Wow. Gay lives matter less in the Philippines, than Black lives matter in the US.

Posted by: David Behar | Jun 1, 2017 4:24:12 PM

Enjoy in your oh-so-standard - and smug - way, DAB.

Posted by: anon | Jun 1, 2017 7:29:49 PM

I am both bemused and confused, anon, by you comment, and I would like to hear more about what you think I "enjoy in [an] oh-so-standard - and smug - way." Do you think I "enjoy" horrific murders and subsequent executions? Can you help me understand what you mean by the "oh-so-standard - and smug - way" to enjoy whatever it is you think that I am enjoying here?

I do enjoy reading and reflecting on thoughtful commentary about sentencing law and policy, though some commentary in this arena can be standard and smug. But it does not seem you mean to call my commentary standard and smug, and I am genuinely eager to better understand the meaning of and basis for your comment.

Posted by: Doug B. | Jun 1, 2017 8:54:16 PM

Anon is a dirty lawyer, not even a human being. What it does for a living is morally outrageous. Ignore.

Worry about the 99.99% fraction of pro-criminal posts. You are the David Duke of anti- crime victim hate speech propaganda outlets.

Posted by: David Behar | Jun 2, 2017 1:04:44 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB