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Group Gives Up Death Penalty Work
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By ADAM LIPTAK
Published: J anuary 4, 2010
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Last fall, the American Law Institute, SIGN INTO E-MAIL THE PERFECT
Sidebar which created the intellectual PRINT SWING?
Adam nen framework for the modem capital REPRINTS SCIENTIFICALLY PROVEN
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There were other important death WATCH TRAL Bie
Related penalty developments last year: the
‘Times Topics: Capital Punishment — yumber of death sentences continued to fall, Ohio switched
to a single chemical for lethal injections and New Mexico MOST POPULAR
repealed its death penalty entirely. But not one of them was as significant as the institute’s E-MAILED BLOGGED SEARCHE
move, which represents a tectonic shift in legal theory. 1. The Card Game: HowVisa
Dominates a Market
‘The A.L. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the 2. David Brooks: The Tea Par
University of California, Berkeley. “They were absolutely singular on this topic” — capital 3. Adult Leaming| Neuroscic
punishment — “because they were the only intellectually respectable support for the death. Brain
penalty system in the United States.” 4. Study Says Women With )
5. No Longer Majority Black,
The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes 6. Letter From London: My /
and shapes the law in restatements and model codes that provide structure and coherence 7. Bob Herbert: An Uneasy F
in a federal legal system that might otherwise consist of 50 different approaches to 8. Mind: Where Did the Time
everything. 9. A Venture Integrating Sky
10. Op-Ed Guest Columnist: T
In 1962, as part of the Model Penal Code, the institute created the modern framework for
the death penalty, one the Supreme Court largely adopted when it reinstituted capital
punishment in Gregg v. Georgia in 1976. Several justices cited the standards the institute
had developed as a model to be emulated by the states.
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1/6/2010 7:38 AM
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The institute’s recent decision to abandon the field was a compromise. Some members had
asked the institute to take a stand against the death penalty as such. That effort failed.
Instead, the institute voted in October to disavow the structure it had created “in light of
the current intractable institutional and structural obstacles to ensuring a minimally
adequate system for administering capital punishment.”
That last sentence contains some pretty dense lawyer talk, but it can be untangled. What
the institute was saying is that the capital justice system in the United States is
irretrievably broken.
A study commissioned by the institute said that decades of experience had proved that the
system could not reconcile the twin goals of individualized decisions about who should be
executed and systemic fairness. It added that capital punishment was plagued by racial
disparities; was enormously expensive even as many defense lawyers were underpaid and
some were incompetent; risked executing innocent people; and was undermined by the
politics that come with judicial elections.
Roger S. Clark, who teaches at the Rutgers School of Law in Camden, N.J., and was one of
the leaders of the movement to have the institute condemn the death penalty outright,
said he was satisfied with the compromise. “Capital punishment is going to be around fora
while,” Professor Clark said. “What this does is pull the plug on the whole intellectual
underpinnings for it.”
The framework the institute developed in 1962 was an effort to make the death penalty less
arbitrary. It proposed limiting capital crimes to murder and narrowing the categories of
people eligible for the punishment. Most important, it gave juries a framework to decide
whom to put to death, asking them to balance aggravating factors against mitigating ones.
The move to combat arbitrariness without giving up sensitivity to individual circumstances
is known as “guided discretion,” which sounds good until you notice that it is a phrase at
war with itself.
The Supreme Court’s capital justice jurisprudence since 1976 has only complicated things.
Justice Harry A. Blackmun conceded in 1987 that “there perhaps is an inherent tension
between the discretion accorded capital sentencing juries and the guidance for use of that
discretion that is constitutionally required.”
That was an understatement, Justice Antonin Scalia said in 1990. “To acknowledge that
‘there perhaps is an inherent tension,’ ” he wrote, “is rather like saying that there was
perhaps an inherent tension between the Allies and the Axis powers in World War II.”
Justice Scalia solved the problem by vowing never to throw out a death sentence on the
ground that the sentencer’s discretion had been unconstitutionally restricted.
In 1994, Justice Blackmun came around to the view that “guided discretion” amounted to
“trreconcilable constitutional commands.” But he drew a different conclusion than J ustice
Scalia had from the same premise, saying that “the death penalty cannot be administered.
in accord with our Constitution.” He said he would no longer “tinker with the machinery of
death.” The institute came to essentially the same conclusion.
Bes
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Some supporters of the death penalty said they welcomed the institute's move. Capital
sentencing “is so micromanaged by Supreme Court precedents that a model statute really
serves very little function,” Kent Scheidegger of the Criminal J ustice Legal Foundation.
wrote in a blog posting. “We are perfectly O.K. with dumping it.”
Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against
the death penalty as such was defeated.
But opponents of the death penalty said the institute’s move represented a turning point.
“It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring
said. “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.”
Samuel Gross, a law professor at the University of Michigan, said he recalled reading
Model Penal Code as a first-year law student in 1970. “The death penalty was an abstract
issue of little interest to me or my fellow students,” Professor Gross said. But he
remembered being impressed by the institute's work, saying, “I thought in passing that
smarter people than I had done a sensible job of figuring out this tricky problem.”
Things will look different come September, Professor Gross said.
“Law students who take first-year criminal law from 2010 on,” he said, “will learn that this
same group of smart lawyers and judges — the ones whose work they read every day — has
said that the death penalty in the United States is a moral and practical failure.”
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A version of this article appeared in print on J anuary 5, 2010, on page More Articles in US »
‘A11 of the New York edition.
Past Coverage
Kentucky's Highest Court Halts Executions in State (November 26, 2009) SIGN IN TO E-MAIL
Civilian Jury Considers Death Penalty for Ex-G.I. (May 21, 2009)
Issue of Execution and the Retarded Returns to Supreme Court (April 28, 2009) PRINT.
ATexas J udge, Accused of Misconduct, Draws Mixed Opinions on Her
Faimess (March 8, 2009) REPRINTS
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