Judge Red Jakoff wants to declare the US Death Penalty illegal

Actually, his name is Jed Rakoff, I just couldn’t pass up that one…

This CNN article is where I saw it.

Simple question to start a debate: Can he do that?

Yes. But he will be quickly reversed by the Second Circuit and/or the Supreme Court. And it’s only the federal death penalty, not state laws.

Illegal, or unconstitutional? Big difference.

Anyway, aside from the obvious Eighth Amendment claims, one can make an equal protection/due process argument based on the horrendous state of appointed counsel for capital cases (and the lack of any guarantee of counsel for death penalty–or any other–cases past the first appeal).

Anyway, can he do that? He’s a federal judge; technically, he could hold that prison was unconstitutional if he wanted to. Of course, that would be overturned in a hummingbird’s heartbeat. So too would this, I’d guess. The current Court does not look kindly on challenges to the death penalty, and a Court of Appeals would be almost certain to follow SCOTUS’s lead.

Oh good. So it’s not like this has much real weight to it, then. Essentially an empty threat?

Essentially, although it might provoke the Court to re-examine the issue, if for some crazy reason they decide, eventually, to grant cert. in the case.

Now, wanna debate whether the death penalty should be unconstitutional? :slight_smile:

Yes please. Let’s do that. Again.

Well, from what I’ve read, his claim is that some studies show that over 50% of death penalty convictions are wrong according to some studies.

No one cares about this?

I don’t think anybody could reasonably argue that the death penalty is a deterrent; it’s essentially state sanctioned revenge. However, my ethical quandary is whether state sanctioned revenge is in and of itself a bad thing.
Divorcing the best reasons to disallow the death penalty (e.g. the dozens of people sentenced to death row later found to be innocent, the overworked D.A.s who often don’t even meet with their client until the week of the trial [in some cases, the hour of the trial], the inequitable distribution of the verdict [i.e. a black defendent who murdered a white victim is many times more likely to be executed than a white person; less than 1% of all death row inmates are from above the poverty line, etc.], the appalling number of cases where prosecuting attorneys sat on evidence that cleared the defendent, etc.), I’d like to debate it purely from an ethical standpoint in which the prisoner’s guilt is beyond question.
Revenge is definitely a base instinct, but could it be argued that it does satisfy an emotional need for closure and balance? I am ethically and intellectually against the death penalty, but I was wildly upset when Timothy McVeigh was killed because a part of me was absolutely glad he was dead. If the killers of Daniel Pearl were positively identified and captured, as much as I would like to quote Camus and Prejean I have to admit that I would gladly loan my jumper cables if the electric chair had an outage, and I hate that part of myself.
Obviously if my own relative or friend were killed I’d want the death penalty, but then I’d also want torture, and I definitely think that should be illegal. So, when there is no question of guilt and the crime was particularly premeditated and brutal, is the sentence of death justified or should we be above that? (Assume also that there is no possibility of parole if the defendent is sentenced to life in prison.)
I don’t pretend to have an answer, but would love to read other’s opinions.
Speaking of death penalty cases, has SDMB ever debated the West Memphis Three case?

A deterrent?? Criminals will laugh at stories on how innocent dupes gets the needle while their drinking buddies get away with it. That doesn’t seem to be a deterrent.

'm pretty sure you didn’t mean to phrase it this way.

“Wrong” as in “the ACLU can dig up some reason why they disagree with the penalty”? Of course. They always can, and always will.

“Wrong” as in “the guy didn’t really pull the trigger”? For that, I need a cite.

For the record - the only reason I am willing to commute any death penalty is innocence. One disadvantage of death penalty debates is that liberals tend to lump together the truly innocent with those for whom they can dig up some obscure reason for appeal number 2,194, since the judge didn’t say “Mother may I” during the penalty phase or something.

Some people hear jackboots every time some creep gets what he deserves.


When I hear some actual evidence that the death penalty is implemented in something approaching a statistical relationship with the severity, frequency, or recidivistic probability of the crimes committed, I will engage in arguments about whether it is likely that it could have a deterrent influence on possible future criminals. Every year, out of thousands of capital crimes, we select a few dozen convicted perpetrators, and execute them. Value of total legal expense is the factor that correlates closest to the likelihood of actual execution. Race is close. Neither of those facts lends any support to the proposition that deterrence is likely.

Vengeance is an expectation of justice. That may be a defensible desire, in a civilized society, since it restrains the populace from the exercise of private vengeance. However, the current implementation of the death penalty does little to satisfy that need, and prolongs the period of desire for vengeance over decades. This harms the victims, and their associates. Whether or not the intellectual issue of death as a deterrent punishment is acceptable is a non-issue. We don’t have that. What we have is a lottery, implementing death sentences to a small percentage of convicted prisoners. Even a true random lottery would be more desirable. At least that would be perceived as fair.

Eliminating the death penalty, and substituting required consecutive sentencing for all known offenses would give more reliable protection to society. It would remove offenders from the population, and in the case of consecutive life sentences, guarantee that parole possibilities were effectively eliminated. Legally mandated reinstitution of prior sentences for conviction subsequent to parole, and consecutive sentencing would make longer sentences directly correlate with recidivism. Curtailing the extent of plea-bargaining would make sentencing match criminal behavior.

The death penalty is most easily defended in the abstract. Arguments about why the theoretical implementation of that extreme social sanction should be acknowledged, but only as defense for the theoretical model. What we have is nothing like that. Until we can begin to make that model realistic, we should discuss the real facts. Poor people die for their crimes, rich people don’t even serve long sentences. People who kill white people die for it, killing non whites is not a capital offense. The facts are obvious, what we have is not a deterrent punishment for serious crimes. What we have is something else entirely.


“Reserve your right to think, for even to think wrongly is better than not to think at all.” ~ Hypatia of Alexandria ~

I am sort of with Tris on this. I don’t think about the death penalty one way or the other, but from what I understand it is not implemented consistently. Apart from that I sort of lean to say that because we damn well know that the state justice system can screw up we shouldn’t make the most severe penalty available as an option.

I think the death penalty should be available for people who want to switch their life sentence to death, though.

I wanted to add that my feelings against the death penalty basically stem from the idea that our justice system is not at war with the citizens of the US, and so there is no motivation for “acceptable casualties” that the death penalty brings with it on false convictions.

A cite, eh? How about: **Since 1977 Illinois has exonerated 13 death row inmates and executed 12. **

In many states, prisoners on death row don’t have adequate legal counsel, so the number of innocent men executed is unknown. But extrapolating from Illinois’ statistics, it is likely that innocent people have been executed. And if only one innocent person has been executed, that’s too many.

When will the United States leave the esteemed company of nations like Russia, China, North Korea, Iran & Saudi Arabia, and join the rest of the civilized world in outlawing this archaic form of punishment?

Nothing is ever implemented consistently across all social and economic levels or through all periods as time goes by. But, once the the death penalty is exacted it can’t be reversed in case we have to say “Whoops.”