33 years after the Supreme Court decided Gregg v. Georgia, the American Law Institute (ALI) has withdrawn its capital punishment provisions set forth in the Model penal Code “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”
I explained why the U.S. Supreme Court reinstated the death penalty in the U.S. In the last posting. After the Court invalidated all of the state statutes regarding the death penalty in Furman v. Georgia, many states based their new statutes on the Model Penal Code, which was drafted by the ALI. When the Court reviewed the new state statutes in Gregg v. Georgia, the Court held that the statutes did not violate the Eight Amendment because they ameliorated the problems of racial discrimination, disproportionate sentencing, and arbitrary capricious sentencing. That case was decided in 1976.
In 2007, ALI members planned on making a motion to have the ALI take a position in favor of abolishing the death penalty at the ALI annual meeting. The ALI president told the members that there would not be a vote on that matter at the 2007 annual meeting, but he would appoint a committee to conduct a study and submit its recommendations at the 2008 annual meeting.
Members of ALI have since written a lengthy paper discussing the state of the death penalty today. The authors concluded that the guided discretion “experiment” was a failure. When the ALI drafted section 210.6 back in 1962, it was untested and considered to be an innovation where juries would exercise guided discretion in deciding who lives and who dies by weighing aggravating and mitigating factors. Now that we have over three decades worth of capital cases to look at since many states modeled their capital punishment statutes on section 210.6, the ALI says that it did not succeed in taking away arbitrariness and caprice away from the administration of the death penalty.
Prior to Furman v. Georgia, many crimes were punishable by death, including burglary, rape, and armed robbery. The ALI's provision in the Model Penal Code limited the crimes for which someone could be executed to murder. Section 210.6 attempted to further limit the kinds of murder that would make a person eligible for the death penalty by listing aggravating factors. What has happened since the death penalty was reinstated as a result of states following the Model Penal Code is that the statutory aggravating factors have become so numerous that they cover many if not most murders in several states.
The ALI has also acknowledged that racial discrimination is still prevalent in the administration of the death penalty today, almost 40 years after Furman v. Georgia. Today, the race of the victim seems to have more of an influence on whether a person will receive the death penalty than the race of the defendant.
Another problem that the ALI has found is the sensationalism in the media regarding capital cases and the political pressures involved. District Attorneys and judges do not want to appear soft on crime when an election is near and are more likely to seek the death penalty depending on certain political circumstances.
The ALI also noted the numerous individuals who had been sentenced to death and were later found to be innocent, often through DNA evidence. I personally had the opportunity of meeting the 100th person to be exonerated from death row since 1973 (Ray Krone) when he visited my law school several years ago. Mention of the lack of funding inadequate counsel often provided in capital cases is made in the ALI's report.
For all of these reasons, the ALI has decided that section 210.6 of the Model Penal Code, which sets forth the ideal manner in which to administer the death penalty has failed. Because the ALI is divided, with some members in favor of the death penalty and others who are not, the ALI will not take a stance supporting the abolition of capital punishment, but at the same time it will not endorse the death penalty by maintaining a section in the Model Penal Code that instructs states on how to carry it out.
The ALI has recently said, “Unless we are confident we can recommend procedures that would meet the most important of the concerns, the Institute should not play a further role in legitimating capital punishment, no matter how unintentionally, by retaining the section in the Model Penal Code.”
Thursday, January 14, 2010
Monday, January 11, 2010
THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART II
In Part I of this posting, I discussed the U.S. Supreme Court's ruling in Furman v. Georgia (1972), which declared invalid all of the state laws regarding the administration of the death penalty. The Court reasoned that the death penalty, as it was being carried out at that time, was a violation of the Eighth Amendment, which bans cruel and unusual punishment. The court noted the disproportionate number of poor and minority defendants that received the death penalty. Because minority defendants would receive a death sentence far more frequently than white defendants who were found to be guilty of the same crime, the Court found the death penalty to be an "unusual punishment" within the meaning of the Eighth Amendment.
At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.
THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.
Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.
Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.
Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.
In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.
The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.
In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.
At the time, states authorized the death penalty for a number of crimes in addition to murder. These crimes included rape, aggravated assault, and armed robbery. In cases involving these charges, minorities would receive the death penalty while white defendants accused of these crimes would rarely receive a death sentence. The Court also noted the unbridled discretion that judges and juries had in determining who shall receive a death sentence. For these reasons, the Court held that the administration of the death penalty in the U.S. was arbitrary and capricious.
THE STATES' RESPONSE TO FURMAN V. GEORGIA
35 states, wishing to preserve the death penalty as the ultimate criminal sanction, revised their statutes regarding the death penalty to comport with the Supreme Court's ruling. In doing so, they turned to the Model Penal Code, which was drafted by the American Law Institute (ALI), for guidance. Section 210.6 of the Model Penal Code set forth the what ALI considered to be the ideal procedure for administering the death penalty.
Georgia, after turning to the Model Penal Code, enacted legislation that required a jury to find at least one statutory aggravating factor before it could impose the death penalty. Statutory aggravating factors included multiple victims, crimes committed against a police officer, crimes committed for financial gain, and the defendant's prior record of capital offenses.
Also guided by the Model Penal Code, the new Georgia statute required a bifurcated trial that consisted of a guilt phase and a sentencing phase. Once the jury determined that the defendant was guilty, they would weigh aggravating and mitigating factors during the sentencing phase to determine whether the defendant should be sentenced to death. It could use any aggravating factors in making its decision, but it had to find at least one aggravating factor specifically listed in the new statute to impose the death penalty.
Finally, the new Georgia statute required an automatic appeal to the Georgia Supreme Court for review of the death sentence to prevent arbitrary and capricious sentencing. The Georgia Supreme Court was to review death sentences to ensure that they were not given under the influence of passion or prejudice, to ensure that there was sufficient evidence to support the existence of a statutory aggravating factor, and whether the a sentence of death is disproportionate to the sentences imposed in similar cases.
In 1976, the U.S.Supreme Court decided the case of Gregg v. Georgia. The court was asked to decide whether the new Georgia statute, which was enacted in response to Furman v. Georgia, violated the Eighth Amendment prohibition on cruel and unusual punishment. The Supreme Court first noted that it did not believe that the death penalty itself constituted cruel and unusual punishment. To support this proposition, the Court pointed to the fact that the death penalty was common place at the time the Eighth Amendment was drafted and there are other constitutional provisions (such as the Fifth Amendment, which requires due process when the government takes life, liberty, or property) that acknowledge the death penalty as acceptable punishment for certain crimes.
The Court concluded that the new Georgia statute alleviated the constitutional concerns that were present prior to Furman v. Georgia. The Court found that drafting a list of specific aggravating factors and requiring a jury to find the existence of at least one of those factors in a two-phase trial resulted in "guided discretion," which remedied the previous problem of juries having unbridled discretion with regard to the decision of who lives and who dies. The Court also found that the automatic review by the state supreme court remedied the problem of disproportionate sentences being carried out. For these reasons, the Court found that the new Georgia statute was not unconstitutional and the death penalty was reinstated in the U.S.
In the next posting, I will explain what happened since Gregg v. Georgia that made ALI delete its section on the death penalty in the Model Penal Code and decline to further endorse the death penalty as an acceptable form of punishment.
Tuesday, January 5, 2010
THE DEATH PENALTY LOSES SUPPORT: THE AMERICAN LAW INSTITUTE NO LONGER SUPPORTS CAPITAL PUNISHMENT 33 YEARS AFTER GREGG V. GEORGIA- PART I
This posting will be a two-part posting in which I will explain the constitutional issues surrounding the death penalty and the reason why capital punishment has just lost one of its most credible and influential supporters. In order to do that, I will need to explain who the A.L.I. is, what happened in Furman v. Georgia, what happened in Gregg v. Georgia, and finally what happened since that decision that has caused the A.L.I. To change its stance on the death penalty.
The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.
In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.
The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.
The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.
In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.
As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”
This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.
The American Law Institute (A.L.I.) is an organization made up of legal scholars, lawyers, and judges with the purpose of clarifying American law and assisting in law reform. The A.L.I. has drafted a number of model codes and statutes and many states chose to adopt the A.L.I.'s Model Codes, in their in entirety, or in part. In 1962, the A.L.I. Published the Model Penal Code, which included a section that set forth what they considered to be the ideal way in which to administer the death penalty in the U.S.
In 1972, The U.S. Supreme Court decided the case of Furman v. Georgia, which resulted in a nation-wide moratorium on capital punishment and the invalidation of the death penalty as it was administered at that time. The majority decision was written in four separate opinions. Justice Thurgood Marshall's opinion in this case happens to be the first U.S. Supreme Court opinion I had ever read back in school.
The question before the Court was whether the death penalty violated the Eighth Amendment. The Court found that because the death sentence was given and carried out arbitrarily, it was unconstitutional. In reaching its conclusion, the Court noted that the Eighth Amendment to the U.S. Constitution was based on a similar provision in the English Bill of Rights in 1689, which was concerned with banning arbitrary and discriminatory penalties. This was to protect the dissenters from
the crown from being subject to arbitrary and discriminatory penalties.
The Court pointed to substantial evidence that the death penalty was handed out disproportionately to the poor, minorities, and members of unpopular groups. The Court reasoned that a punishment is "unusual" if it “discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.”
In one Texas study to which the court referred, in capital cases where there were multiple defendants of different races and the defendants were given separate trials, the white defendants were given a term of life in prison while their black counterparts received the death penalty. Justice Marshall also noted that the death penalty was disproportionately given to men- between 1930 and 1972, 32 women were executed compared to the 3,827 men who were executed.
In addition to finding problems justifying the death penalty as an appropriate or necessary punishment and concluding that it was being arbitrarily imposed in a discriminatory manner, the Court also took issue with the unbridled discretion that judges and juries had in determining who lived and who died.
As Justice Douglas wrote, “...we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.”
This decision invalidated all of the state laws as they were written at that time that imposed the death penalty on a person convicted of a crime. A few years later, the Supreme Court would revisit the issue and the death penalty would be reinstated in the U.S. In the next posting, I'll explain why capital punishment was reinstated and what happened since then that made the A.L.I. change its stance with regard to the death penalty.
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