It does not say, or even suggest, that the death penalty is unconstitutional. Instead, the memorandum says the death penalty is bad policy.
- It's widely opposed by "respectable" organizations and mainstream religious groups.
- It's final with the risks of uncorrectable error that entails.
- It's not been shown by recent (as of 1981) studies to be a deterrent, and it isn't a panacea for the problems of crime and violence.
- It's "associated with" racism, as seen by the disproportion of blacks on death row.
- It's at odds with the Judeo-Christian tradition and with the values of the rest of the world.
- It's teaches a lesson of violence.
- It's inhumane.
- It takes too long, and there are better ways to deal with crime.
We have learned since 1981 that the racial component of the death penalty is primarily reflected in the race of the victim rather than the race of the defendant. And there are recent studies, although they have all been discredited, that tend to show that executions - even of the innocent - have some deterrent effect on murderers. But overall what the memorandum said remains accurate. The death penalty was and is bad policy.
Still, if you're looking for some serious indication that a Justice Sotomayor would echo Justices Brennan, Marshall, ultimately Blackmun, and perhaps now Stevens in finding that the death penalty is unconstitutional, you sure won't find it in that memorandum. Or much of anywhere else.