Testimony Regarding American Law Institute’s Withdrawal of Capital Punishment
Provision from Model Penal Code and Accompanying Statement Regarding
Prevailing Inadequacies of American Death Penalty System
Jordan M. Steiker (University of Texas)
I am here to share my perspective on the recent decision of the American Law
Institute to withdraw the capital punishment provision (MPC § 210.6) from the Model
Penal Code in light of what the ALI regards as “the current intractable institutional and
structural obstacles to ensuring a minimally adequate system for administering capital
punishment.” First, a few brief words about the ALI. The ALI is an independent
organization of lawyers, judges, and academics devoted to “clarifying, modernizing, and
otherwise improving” the law. The organization, founded in 1923 by some of the most
distinguished lawyers in the country, including Chief Justice (and former President)
William Howard Taft and future Chief Justice Charles Evan Hughes, is the most
prestigious law reform organization in the United States. Two of its early leaders were
Judges Benjamin Cardozo and Learned Hand. It currently has an elected membership of
about 3000 attorneys. The ALI’s work comes in the form of its famous Restatements of
Law (such as the Restatements of Contracts, Torts, Restitution, and Trusts), its
collaboration on the Uniform Commercial Code, and its Model Statutory Formulations,
including the Model Code of Evidence and the Model Penal Code. Under its bicameral
structure, ALI projects become the official work of the Institute when approved by both
the ALI membership and the ALI Council (a smaller group of about 60 elite members).
The ALI adopted the Model Penal Code in 1962. The Institute describes the
MPC’s purpose as follows: “to stimulate and assist legislatures in making a major effort
to appraise the content of the penal law by a contemporary reasoned judgment - the
prohibitions it lays down, the excuses it admits, the sanctions it employs, and the range of
authority that it distributes and confers.” Over the past half century, the MPC has been
extraordinarily influential in states’ efforts to codify and revise their criminal statutes.
In 2001, the Institute undertook a project to revise some of the criminal
sentencing provisions of the MPC. At that time, the Director of the Institute, the Council,
and the Reporter of the sentencing project decided not to revisit the capital sentencing
provisions. When a tentative draft of the sentencing project came before the membership
in 2007, a motion was made for the Institute to call for the abolition of the death penalty.
The Institute did not act on the motion, but instead referred to the Program Committee
and the Council the question “whether the ALI should study and make recommendations
about the death penalty.” An ad hoc committee of Council members was appointed to
advise the Program Committee in the matter. That committee identified three possible
courses of action: (a) call for abolition of the death penalty; (b) withdraw § 210.6 from
the Model Penal Code (the capital sentencing provision); and/or (c) undertake a project to
revise § 210.6.
The Institute then chose to study the matter further, and engaged my sister, Carol
Steiker (Professor at Harvard Law School), and I to prepare a substantial paper
addressing these proposed courses of action. The Institute also assembled a diverse
group of criminal justice experts, including judges, lawyers, and academics, to advise us
on our report. A fter our report was completed, in the fall of 2008, the Council
recommended to the membership that the Institute should withdraw the capital sentencing
provisions from the Model Penal Code; that the Institute should not take a position on
capital punishment itself; and that the Institute should not engage in a project on capital
punishment (either to revise or replace § 210.6). In May, 2009, the membership of the
ALI ultimately adopted a somewhat broader position that underscored the prevailing
inadequacies of the prevailing American death penalty: “For reasons stated in Part V of
the Council’s report to the membership, the 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.” The
Council approved the membership’s position in October, 2009, and that is now the
official Institute position regarding capital punishment.
My comments today will explain the basis of the Institute’s decision and its
broader significance. I want to begin by pointing out the MPC death penalty provision
was critical to the reinstatement of the death penalty in 1976. At the time the ALI
adopted the MPC in 1962, state death penalty statutes provided essentially no guidance to
capital sentencers. Typical state statutes simply allowed jurors to choose between life or
death based on their “conscience” and their own “moral light.” The drafters of the MPC
viewed the absence of guidance as problematic because it seemed to ensure the arbitrary
administration of the punishment. Section 210.6, by specifying relevant aggravating and
mitigating factors, sought to ameliorate these concerns about the arbitrary administration
of the punishment. The MPC provision was essentially ignored until the Supreme Court
invalidated all existing capital statutes in Furman v. Georgia in 1972. Furman raised
concems about the arbitrary and discriminatory administration of the death penalty.
These concems stemmed from the interplay of extremely broad death eligibility in state
schemes, the fact of its rare imposition, and the absence of any standards guiding
charging or sentencer discretion. After Furman, states sought to resuscitate their capital
statutes by revising them to address the concems raised in Furman; many of the states
turned to § 210.6 as a template for their revised statutes, hoping in part that the prestige
of the Institute would help to validate these new efforts. In the 1976 cases addressing
five of the revised statutes, state advocates drew particular attention to the fact that many
of their provisions were modeled on § 210.6. The Court in tum relied on the expertise of
the Institute - particularly its view that guided discretion could improve capital
decisionmaking - when it upheld the Georgia, Florida, and Texas statutes. Those
statutes, and the decisions upholding them, have provided the blueprint for the modem
American death penalty, and indeed, the current Kentucky statute likewise borrows
heavily from the MPC framework.
As our Report recounts, it is now clear that the Court’s efforts over the past 35 or
so years to regulate capital punishment - largely on the model provided by the MPC -
has been unsuccessful on its own terms. The guided discretion experiment has not solved
the problems of arbitrariness and discrimination that figured so prominently in Furman;
nor has the Court’s regulation proven able to ensure the reliability of verdicts or the
protection of fundamental due process in capital cases. An abundant literature, reviewed
in our Report, reveals the continuing influence of arbitrary factors (such as geography)
and invidious factors (most prominently race) on the distribution of capital verdicts.
Most disturbing is the evidence of numerous wrongful convictions of the innocent, many
of whom were only fortuitously exonerated before execution, and the continuing concen
about the likelihood of similar miscarriages of justice in the future. These failures of
constitutional regulation are due in part to the inherent difficulty and complexity of the
task of rationalizing the death penalty decision, given the competing demands of even-
handed administration and individualized consideration. But such a difficult task is
compounded by deeply rooted institutional and structural obstacles to an adequate capital
justice process, such as the intense politicization of the capital justice process and the
inadequacy of resources for capital defense services.
I will speak briefly about these conclusions.
First, on the effort to reconcile the competing concems of “guidance and
structure,” on the one hand, to ensure equal treatment of offenders, and
“individualization,” on the other, to ensure adequate consideration of aspects of an
offender’ s character, background, and circumstances of the offense. Despite serious
efforts by states and the courts to mediate this tension, almost no one believes that our
current system does this well, or is even capable of reconciling these competing interests.
The best evidence of the inadequacies of constitutional regulation in this regard is the
sheer number of Justices who have either abandoned the enterprise, in whole or in part, or
raised serious questions about its feasibility. The attempt to regulate the capital justice
process through constitutional supervision is not in its infancy; the Court has had nearly
four decades of experience in implementing it. Notably, two of the four Justices who
dissented in Furman in 1972 eventually came full circle and repudiated the constitutional
permissibility of the death penalty. Justice Blackmun did so in a long and carefully
reasoned dissent from denial of certiorari, concluding twenty-two years after Furman,
that “the death penalty experiment has failed.” Justice Powell did so in reviewing his
career in an interview with his official biographer after his retirement. Justice Stevens,
one of the three-Justice plurality that reinstituted the death penalty in the 1976 cases,
recently concluded that the death penalty should be ruled unconstitutional, though he has
committed himself to stare decisis in applying the Court’s precedents. In explaining his
own change in constitutional judgment, Justice Stevens offers a long list of concerns
about the administration of the death penalty and notes that the Court's 1976 decisions
relied heavily on the now untenable belief “that adequate procedures were in place that
would avoid the [dangers noted in Furman] of discriminatory application . . . arbitrary
application . . . and excessiveness.” Justices Scalia and Thomas have repudiated the
Court’ s Eighth Amendment jurisprudence as hopelessly contradictory and unable to
promote guided discretion. Justices Kennedy, Souter, and Breyer each have authored
opinions raising a variety of serious concerns about the administration of capital
punishment and the ability of constitutional regulation to prevent injustice. As we stated
in our Report, we could think of no other constitutional doctrine that has been so
seriously questioned both by its initial supporters and later generations of Justices who
have tried in good faith to implement it. The most reasonable conclusion to draw is that
the constitutional regulation of capital punishment - which in large part used the MPC as
a template for constitutional sufficiency - has been and continues to be a failure.
Second, the fair and accurate administration of the death penalty has been
undermined by the intense politicization of the capital process. Capital punishment is
politicized institutionally, in that some or all of the most important actors in the
administration of capital punishment are elected (with the exception of lay jurors). At the
same time, capital punishment is politicized symbolically, in that it looms much larger
than it plausibly should in public discourse because of its power as a focus for fears of
violent crime and as political shorthand for support for “law and order” policies
generally. These two aspects of politicization ensure that the institutional actors
responsible for the administration of the capital justice process are routinely subject to
intense pressures, which in tum contribute to the array of problems that plague the
current system, including inadequate representation, wrongful convictions, and disparate
racial impact. There is little hope of successfully addressing these problems in the
absence of profound change on the politicization front.
The vast majority of death penalty jurisdictions within the United States have
elected rather than appointed prosecutors, and these prosecutors are usually autonomous
decisionmakers in their own small locales (counties). Rarely is there any state or regional
review of local decisionmaking or coordination of capital prosecutions. These simple
facts of institutional organization generate enormous geographic disparities within most
death penalty jurisdictions. In addition, the symbolic politics of capital punishment is
very much at play in the election of local prosecutors. Candidates for local district
attorney and state attorney general in a wide variety of jurisdictions have run campaigns
touting their capital conviction records, even going so far as listing individual defendants
sentenced to death.
Judges as well as prosecutors must face the intense politicization that surrounds
the administration of capital punishment. Almost 90% of state judges face some kind of
popular election. Of course, there is every hope and reason to expect that most judges
will conscientiously endeavor to resist such pressures and decide cases without regard to
political influences. Despite confidence in the personal integrity of the individual men
and women who comprise the elected judiciary, several statistical studies suggest that, in
the aggregate, judicial behavior in criminal cases generally and capital cases in particular
appears to be influenced by election cycles. Moreover, in many jurisdictions, judges not
only preside over and review capital trials, they also appoint lawyers, approve legal fees,
and approve funding for mitigation and other expert services. These decisions, which are
crucial to the capital justice process, are less visible but no less likely to be subject to
political pressures. Governors, too, are influenced by the intense politicization of capital
punishment. Like prosecutors and judges, Governors have often campaigned on their
support for the death penalty, emphasizing their willingness to sign death warrants.
While Governors are less implicated in the day-to-day workings of the capital justice
process than prosecutors and judges, they play a crucial role in the exercise of clemency
powers, which the Supreme Court has recognized as an important defense against
conviction and execution of the innocent. The trend in the use of the clemency power in
capital cases has been sharply downward in the decades since the reinstatement of capital
punishment in 1976, at the same time that the trend in death sentencing and executions
has been sharply upward. The persistent high political salience of capital punishment, as
reflected by its prominence at all levels of political discourse, has no doubt affected the
willingness of Governors to set aside death sentences in appropriate cases.
The foregoing suggests that politicization of the death penalty, both within the
capital justice process and more broadly in the realm of public policy and discourse,
threatens both the integrity of individual cases and the prospects for reform.
Third, the persistence of race discrimination. Race discrimination has cast a long
shadow over the history of the American death penalty. The central question today is
whether efforts to guide sentencer discretion - such as the one embodied in the MPC
death-sentencing provision - successfully combat the sort of discrimination documented
in earlier studies. The current empirical assessment is “no” - that race discrimination still
plagues the administration of the death penalty, though the evidence suggests that race-
of-the-victim discrimination is of a much greater magnitude than race-of-the defendant
discrimination. The more difficult question is whether the persistent role of race in
capital decisionmaking can be significantly reduced or eradicated, whether through
statutory efforts to narrow the reach of the death penalty or other means.
The most significant efforts to reduce the effect of race in capital proceedings
have focused on narrowing the class of death eligible offenses and guiding sentencer
discretion at the punishment phase of capital trials. The first solution - restricting the
death penalty to the most aggravated cases - appears promising, because studies have
found that race effects essentially disappear in such cases given the very high frequency
of death sentences in that range. Indeed, the MPC death sentencing provision could be
viewed as one such effort to narrow the death penalty because it requires a finding of an
aggravated factor (beyond conviction for murder) to support the imposition of death.
The problem, though, played out over the past thirty years, is that no state has
successfully confined the death penalty to a narrow band of the most aggravated cases.
Death eligibility in prevailing statutes remains breathtakingly broad, as aggravating
factors or their functional equivalent often cover the spectrum of many if not most
murders. The MPC provision is representative in this regard, allowing the imposition of
death based on any of eight aggravating factors, including murders in the course of
several enumerated felonies, and any murder deemed “especially heinous, atrocious or
cruel, manifesting exceptional depravity.”
The failure to achieve genuine narrowing is partly a matter of political will in
light of the constant political pressure to expand rather than restrict death eligibility in
response to high-profile offenses (consider the expansion of the death penalty for the
crime of the rape of a child). But the failure also stems from the deeper problem: that it
remains an elusive task to specify the “worst of the worst” murders in advance. Any
tule-like approach to narrowing death eligibility will require jettisoning factors such as
MPC’s “especially heinous” provision; but those factors often capture prevailing moral
commitments - some offenses are appropriately regarded as among the very worst by
virtue of their atrociousness, cruelty, or exceptional depravity.
Fourth, the inadequacy of resources. Capital prosecutions are expensive. A
number of studies have tried to ascertain the relative expense of capital prosecutions vis-
a-vis non-capital prosecutions, using a variety of methodologies. What emerges from
these studies is a consensus that capital prosecutions generate higher costs at every stage
of the proceedings, and that the total costs of processing capital cases are considerably
greater than those of processing non-capital cases that result in sentences of life (even
life-without-possibility-of-parole). Increased costs are attributable, among other things,
to the relatively high costs of capital trials (bifurcated proceedings, investigation costs,
voir dire costs, expert costs -- particularly for development of mitigation, etc.), the costs
of mandatory appeals and multi-layered postconviction review, and the comparatively
high costs of death-row incarceration. Along these lines, and to illustrate via an extreme
case, it is worth noting that the current estimate for the cost of each of the thirteen
executions secured in California (dividing total expenditures on capital cases over the
past 35 years by the thirteen executions) is approximately one-quarter of a billion dollars.
Despite the very large costs that are currently incurred in the administration of
capital punishment, there is also good reason to believe that the capital process remains
substantially under-funded, especially in the area of defense counsel services. The best
reference point for what constitutes minimally adequate defense counsel services in
capital cases has been provided by the American Bar Association. The Supreme Court
has repeatedly endorsed the ABA’s performance standards for capital defense counsel as
a key benchmark for assessing the reasonableness of attorney performance in a series of
recent cases addressing claims of ineffective assistance of counsel in capital cases.
Nonetheless, it is obvious that the vast majority of states do not comply with the
ABA Guidelines, and many do not come even close.
The 2003 revisions to the ABA Guidelines insist that the Guidelines are not
“aspirational” but rather are the minimum necessary conditions for the operation of the
capital justice process in a fashion that adequately guarantees faimess and due process.
Unfortunately, the record of compliance with the Guidelines even among the states most
committed to providing adequate defense services remains poor. The record of state
compliance with the Guidelines overall suggests that the states agree with the ABA that
the Guidelines are not aspirational - not because the states believe that they are required,
but rather because they simply do not aspire to meet them.
Failure to meet (or even to aspire to meet) the ABA Guidelines should not
necessarily be written off as simple intransigence. The costs involved in providing the
resources necessary for a minimally fair capital justice process can be staggering. The
widespread failures to adequately fund defense counsel services, which are foundational
for the implementation of most other reforms, made the ALI dubious of the prospects for
success of a large-scale law reform project in this area.
Lastly, concems about wrongly convicting and executing the innocent. Although
there is debate about what constitutes a full “exoneration,” it is beyond question that
public confidence in the death penalty has been shaken in recent years by the number of
people who have been released from death row with evidence of their innocence.
Because exonerations of death-sentenced prisoners are such dramatic events, they
have generated extensive study of the causes of wrongful convictions, in capital cases and
more generally. There is widespread consensus about the primary contributors to
wrongful convictions: eyewitness misidentification; false confessions; perjured
testimony by jailhouse informants; unreliable scientific evidence; suppression of
exculpatory evidence; and inadequate lawyering by the defense.
In light of the well-known causes of wrongful convictions and the great public
concern that exonerations generate, especially in capital cases, one might expect that this
would be an area in which remedies should be relatively easy to formulate and achieve
without much resistance in the judicial or legislative arenas. In fact, remedies have
proven remarkably elusive, despite the clarity of the issues and degree of public
sympathy. First, it did not prove easy for those who were eventually exonerated by DNA
to get access to DNA evidence or to get relief even after the DNA evidence excluded
them as the perpetrators of the crimes for which they were convicted.
Second, these early difficulties cannot be written off as preliminary kinks that
have been worked out of the system. While the vast majority of states have now passed
legislation requiring greater preservation of and access to DNA evidence, the ABA
Moratorium Implementation Project’s recent assessment of 8 death penalty states
included an assessment of how well these states were complying with the ABA’s
recommendations regarding preservation of and access to biological evidence, and the
provision of written procedures, training and disciplinary procedures for investigative
personnel. As in the context of the provision of defense counsel services, findings of
complete non-compliance or only partial compliance with the ABA’s recommendations
were commonplace, while full compliance was rare.
This resistance has a variety of causes. Some law enforcement groups resist
changes in investigative procedures with which they have been comfortable, such as
interrogations and identification procedures. Moreover, they may oppose proposals for
greater monitoring and disciplining of investigative personnel because they fear that
misunderstandings may lead to misuse of such procedures. Some reforms are expensive,
such as investing in the infrastructure for reliable preservation of biological material,
while others promise to be too open-ended in the resources that they might require, such
as improving defense counsel services.
Once again, as in the provision of adequate defense counsel services, there is not
very much question about the general types of improvements that would be helpful in
reducing wrongful convictions; rather, there appears to be an absence of political will to
implement them (or to do so in an expeditious fashion).
Overall, these considerations (and others I have not discussed for lack of time)
prompted the ALI to adopt its three-fold position of withdrawing the capital sentencing
provision, declining further study of the death penalty, and issuing its statement regarding
the current intractable obstacles to a minimally adequate death penalty system. A brief
word on each of these decisions.
Withdrawal of the capital sentencing provision constitutes recognition that the
provision has not and cannot satisfactorily solve the problems of arbitrariness and
fairness undermining the past and present system of capital punishment. The Institute
wished to disassociate itself from the system of capital punishment that its provision had
been crucial to sustaining.
The decision not to study the death penalty further was supported by the view that
the problems of the prevailing system were not likely to be solved by new and better
ideas; rather, some of those difficulties are likely ineradicable, whereas others, though
curable, face insurmountable institutional structures that prevent well-known solutions
from being adopted and appropriately implemented.
Finally, the decision to accompany the withdrawal of the MPC provision with a
statement regarding the inadequacy of prevailing practices represented a judgment about
the Institute’s appropriate role. The Institute rejected issuing a call for outright abolition
because it was rightly concerned that such a call would be read as a broad pronouncement
regarding the morality of capital punishment rather than an appraisal of its administration
within our society. The Institute did not endeavor to consider whether the death penalty
is justified retributively or serves as a deterrent or violates basic human rights. Rather, it
started with the assumption that states might believe the death penalty to serve important
interests and then evaluated whether, given its present administration, it can reasonably
be maintained. The language adopted by the Institute makes clear that the answer to that
question is “no,” and that the entrenched obstacles to the fair and accurate administration
of the death penalty provide reason enough (wholly apart from broader moral
considerations) to revisit whether capital statutes remain on books.
Contact information for Jordan Steiker:
Email: jsteiker@ mail.law.utexas.edu
Phone: 512-232-1346
Mail: University of Texas School of Law, 727 East Dean Keeton Street, Austin, TX
78705.
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