A theoretical question about the death penalty

The death penalty article [in the Spring 2023 issue] ends with a quote stating that even though the Supreme Court’s 1972 Furman decision only temporarily banned the death penalty, it was nonetheless a success because “there were 629 people on death row whose lives were saved.”

Excuse me, but might one ask whether it was also a “success” for the loved ones of those murdered by the 629 let off death row? Before the predictable retorts come back, remember, we are the purveyors of nuance and perspective, right? 

More generally, the article notes the death penalty is essentially dying for practical reasons: Namely, it’s expensive and cumbersome, essentially not worth “it.” 

But even the more worrisome and principled reasons — like disparate application and examples of innocence — are, at bottom, more so practical criticisms, which beg an old question: If — at least in theory — these “problems” could be addressed, then what principled objection remains? 

Nowhere in the article is it mentioned that the death penalty is immoral, which suggests to me it is moral, fair, and right, but flawed for practical reasons. If so, perhaps address and fix the flaws.

William Choslovsky ’94

Boundless enthusiasm for state law

Buried in the Spring 2023 article concerning Molly Brady’s “Boundless Enthusiasm” for property law (not one of my favorite subjects) was a brief quote which triggers this letter on a topic I have long sought, but neglected, to address. Brady says that state forums are an audience neglected by legal scholarship’s strong bent toward federal law. “You can dig up incredibly interesting things in state court decisions.” Brady’s quote is an understatement of major proportions.

I have over these many years read with dismay articles invariably addressing federal law as the fount of all wisdom. It seems to be suggested that federal judges are selected for their demonstrated scholarship, without regard to the political muck from which state judges are chosen. Anyone with knowledge of the system(s) knows this to be nonsense, at least as a general rule. While there have been legal scholars of renown selected for the federal bench (my classmate Richard Posner being a prime example), the selection process heavily involves the U.S. senators who are, more often than not, motivated by political consideration, such as ideology, gender, and ethnic diversity. That is not to suggest federal judicial selections are suspect but only that the process — and those chosen — is the result of old-fashioned politicking. State court judges are subject to the same considerations, worse when they are elected. Yet, even then excellence often emerges triumphant.

My point is simply that state court decisions are indeed, as Professor Brady says, “incredibly interesting.” As a state appellate judge, in a nonelection state, I can say that we worked under great pressure, writing about 12 opinions a month (with little law clerk assistance), covering every aspect of the law. While federal courts get the attention on “hot-button” cases, I suggest that, overall, state decisions are not only more important but more interesting.

Our appellate bench is chosen by the chief justice of our Supreme Court from the trial bench, based on demonstrated intellectual capacity, while also reflecting some political considerations, such as party affiliation, diversity, and geography. Our appellate courts, intermediate and supreme, can stand up to any federal circuit court. To mention just a few Harvard graduates, our current Chief Justice Stuart Rabner ’85, Justice Rachel Wainer Apter ’07, and Acting Justice Jack Sabatino ’82.

I can understand why coursework centers on federal law, since it would be impractical, for example, to cover state evidence law which may differ from state to state. Notwithstanding, that is no excuse to disregard state judges, both with respect to their decisions and as speakers at law school forums.

More could be said. Kudos to Molly Brady for her acknowledgment of the importance of state law, glancing as it may have been.

Harvey Weissbard ’62
(retired) judge, Superior Court of New Jersey Appellate Division