Guest post by Dick Barbuto.
If you want to read a book about the pros and cons of the death penalty, this is not it. The Death of Punishment: Searching for Justice Among the Worst of the Worst fails to do much more than further Professor Robert Blecker’s career as a crusader for the death penalty.
For the sake of full disclosure, I am not a death penalty advocate. I find the imposition of the death penalty to be barbaric and believe that it should be abolished. So Professor Blecker and I will never come to a meeting of the minds due to our opposing moral certainties. But, this is not my book, it is Professor Blecker’s. He does not claim every murder requires the death penalty. Indeed, he proclaims that only “the worst of the worst” should be executed.
In support of his argument, Prof. Blecker relies on conversations with death penalty prisoners over the last 10-plus years. Examples of the cases he discusses include multiple murders of children, cases involving torture followed by death, rape-murder cases, and other heinous crimes.
There is no question that the cases he writes about will make your blood boil. Throughout the book, Blecker talks about how emotional this subject makes him, and how much he wants the monsters perpetrating those acts to be killed. This, of course, is part of the problem. The criminal justice system must be administered by professionals in a fair and impartial manner, not over-emotional law professors.
Thankfully, Blecker does spend time discussing the notion of proportionality in sentencing. His proposal is that the death penalty should be reserved for only the “worst of the worst.” This is not exactly a novel position, as penal law recognizes that different crimes require different times. For example, in New York State, where Blecker teaches, there is no death penalty. However, murder in the first-degree can carry a penalty of life without parole while murder in the second degree carries a maximum penalty of 25 years to life. Murder in the second-degree at least carries the possibility of parole.
There are, of course, many different homicide categories in New York State, including manslaughter, vehicular homicides, negligent homicides, etc. Each of these crimes has a specific penalty attached to it based on the New York State Legislature’s determination of the seriousness of the crime. This business of proportionality depends on the nature of the crime and the intent of the actor when committing the crime.
The Death of Punishment is written from an academic point of view. As a result, it suffers some shortcomings. He has gone out and interviewed people on death row and a few people working in the actual prisons. There were not, that I saw, any interviews or conversations with trial lawyers, although Blecker did have some conversations with appellate attorneys.
As is often the case, ivory towers are sometimes claustrophobic. If Blecker was serious about tackling problems in sentencing, he might wish to walk the floors with a prison guard or try a case or two with seven in the trenches. In this way, he might have come up with a more balanced view of how the criminal justice system actually works.
As a reviewer I think it appropriate to ask why this book was written. As far as the pros and cons of the death penalty go, it is of very little value. In terms of sentencing individuals to the death penalty, Professor Blecker does not really come up with any particular construct. Advocating for administering the death penalty to the worst of the worst raises too many obvious, unanswered questions. If we are to accept that proportionality is the key to fair sentencing then legislatures all over the country have already come to that conclusion.
Professor Blecker is a very smart man, make no mistake about that. But The Death of Punishment: Searching for Justice Among the Worst of the Worst fails to do much more than further his career as a crusader for the death penalty.
Dick Barbuto is a past president of the New York State Association of Criminal Defense Lawyers (NYSACDL). He has practiced criminal law in multiple jurisdictions, both state and federal.