Death Penalty Undermined

The New York Times is reporting "a tectonic shift in legal theory"--the American Law Institute's announcement that it is abandoning the framework it created in 1962 in an "effort to make the death penalty less arbitrary." Section 210.6 of the Model Penal Code, which created the "intellectual framework for the modern capital justice system, has been withdrawn by the ALI "in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment." Click here to read a message from ALI Director Lance Liebman and here to read the Report of the Council to the Membership of the ALI on this subject. The New York Times has a pithy summary of the reason underlying ALI's action: "What the institute was saying is that the capital justice system in the United States is irretrievably broken."

According to the ALI, what are the problems with the capital justice system? 1.) It is impossible to "reconcile the twin goals of individualized decisions about who should be executed and systemic fairness." 2.) Racial disparities in administering capital punishment persist. 3.) The system is extremely expensive. 4.) There is a serious risk of executing the innocent. 5.) The system is "undermined by the politics that come with judicial elections."

Opponents of the death penalty had hoped that the ALI would "take a stand against the death penalty as such [but] that effort failed." Nonetheless, the ALI's action is important, according to Professor Franklin E. Zimring, expert on criminal law and the death penalty, "'because they were the only intellectually respectable support for the death penalty system in the United States.'" Zimring went on to say that ALI's action is "'very bad news for the continued legitimacy of the death penalty ... But it's the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.'"