Will the Death Penalty Ever Die?

Benjamin Krain/Arkansas Democrat-Gazette/AP Images
Arkansas death row inmate Ledell Lee, convicted of a 1993 murder that he maintained he did not commit, at a court hearing in Little Rock, April 18, 2017. With the help of the Innocence Project and the ACLU, Lee requested a stay of execution in order to prove his innocence with DNA testing, but the Supreme Court rejected his appeal, and he was executed on April 20, days before the expiration of one of the drugs involved in the lethal injection.

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…



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