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.