DEATH PENALTY LOSES SUPPORT- PART III

33 years after the Supreme Court decided Gregg v. Georgia, the American Law Institute (ALI) has withdrawn its capital punishment provisions set forth in the Model penal Code “in light of the current intractable institutional and structural obstacles to ensuring a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.”