American Law Institute Director Lance Liebman just informed all members of the 86-year-old legal reform group that its ALI Council "overwhelmingly" voted in favor of the following resolution:
[T]he Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.
As Berkeley Law Professor Franklin E. Zimring detailed in his article The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code, mid-20th C. drafters of the model code had recommended that ALI "'favor abolition'" of the death penalty altogether. The failure of that recommendation created a need for a model capital sentencing statute, and so Section 210.6 was adopted in 1962. Reprinted at Annex A here, its framework for the balancing of mitigating and aggravating circumstances was envisioned as reducing the arbitrariness of capital punishment as then administered. Ironically, it became the template with which retentionist states reestablished the death penalty after the U.S. Supreme Court, in Furman v. Georgia (1972), invalidated other sentencing methods.
It is in that context that the ALI now has declared the post-Furman/post-Model Penal Code system "intractable" and not even "minimally adequate."
The resolution quoted above cited the April 2009 Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty, which set forth
major reasons why many thoughtful and knowledgeable individuals doubt whether the capital-punishment regimes in place in three-fourths of the states, or in any form likely to be implemented in the near future, meet or are likely ever to meet basic concerns of fairness in process and outcome.
The reasons, derived from the paper by Professors Carol Steiker (Harvard) and Jordan Steiker (Texas) at the report's Annex B, included:
► "tension between clear statutory identification of which murders should command the death penalty and the constitutional requirement of individualized determination;"
► "difficulty of limiting the list of aggravating factors so that they do not cover (as they do in a number of state statutes now) a large percentage of murderers;"
► "near impossibility of addressing by legal rule the conscious or unconscious racial bias within the criminal-justice system that has resulted in statistical disparity in death sentences based on the race of the victim;
► "enormous economic costs of administering a death-penalty regime, combined with studies showing that the legal representation provided to some criminal defendants is inadequate;"
► "likelihood, especially given the availability and reliability of DNA testing, that some persons sentenced to death will later, and perhaps too late, be shown to not have committed the crime for which they were sentenced; and"
► "politicization of judicial elections, where — even though nearly all state judges perform their tasks conscientiously — candidate statements of personal views on the death penalty and incumbent judges’ actions in death-penalty cases become campaign issues."
Kudos to Zimring, who pressed the issue in 2005, not only before the ALI, but also in the article discussed above, and to our international law colleagues Roger S. Clark (Rutgers-Camden) and Ellen S. Podgor (Stetson) who, as we've posted, moved for ALI's reconsideration of capital punishment 2 years ago. To a member then watching, it was by no means apparent that their efforts would lead in short order to, as Liebman's message put it, "the consensus of the membership," numbering 4,000 U.S. lawyers, law professors, and judges, "and now of the Council" (whose membership includes, incidentally, IntLawGrrls guest/alumna Patricia M. Wald).
By that consensus, Liebman's message made clear, nonsupport of the current system of capital punishment in America now "is the official position of the Institute."