The perennial question from Europeans: Why does a 'civilized' nation like the USA hang on to a barbaric punishment like the death penalty? If I am in the mood, I reel off my 5-pronged answer (sometimes I miss a prong or add a few, depending on level of drunkenness).
One of those prongs is that in Europe, the entire law professoriate, and the entire educated class, is uniformly against capital punishment, with trivial exceptions. They act as elite opinion gatekeepers, making sure no pro-capital punishment arguments are ever aired in the mainstream media. Even Germany's leading tabloid, Bild, has always been against capital punishment.
Not so in the USA. Staying with the New York Times, here's an op-ed from William Baude, an assistant professor of law at the University of Chicago. He's commenting on a recent court decision, Glossip v. Gross, in which liberal Justices Breyer and Ginsburg advocated abolishing the death penalty in the USA:
Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.
We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.
If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.
Note that Baude himself never states his own preferred position on capital punishment, except that it should be 'left to the states of the people'. A German law professor might well consider this pusillanimous, but of course you could also call it admirably restrained.