Judge Rakoff On The Allure Of The Death Penalty

“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,” writes Judge Jed S. Rakoff, senior judge on the federal district court in Manhattan. “Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead.” With that as his starting point, Judge Rakoff looks at the modern judicial history of the death penalty in the United States, as he reviews a book entitled Courting Death: The Supreme Court and Capital Punishment, by brother and sister authors Carol S. Steiker and Jordan M. Steiker. “If I have a criticism of their otherwise trenchant account,” Rakoff writes, “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.” Squaring the imposition of the death penalty with the Constitution has proven to be challenging, but obviously not impossible, as it has survived numerous court challenges. What may in the end do in the death penalty, according to Rakoff, is the now incontrovertible fact that innocent people have been, and no doubt will continue to be, put to death. How often this happens is debated, but one widely accepted study says the figure is at least four percent.