Death to death penalty institute

[Peikko 1,575]

Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”

The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

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.

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 have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at 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 for a 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 “irreconcilable constitutional commands.” But he drew a different conclusion than Justice 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.

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 Justice 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 represents 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,” he said. But he remembered being impressed by the institute’s work. “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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[peejay 327]

A study commissioned by the institute said that decades of experience have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections.

I'm not a big cheerleader for the death penalty, but I have no personal moral qualms about executing murderers whose crimes fit the criteria for capital punishment.

That said...I don't see that capital punishment should be another affirmative action program with racial quotas. I often see the counting the numbers of each race on death row has more to do with identity politics than whether these people actually did the deed that landed them on death row.

As far as risks of executing innocent people. I dare say mega more innocent people have been murdered by paroled criminals and murderers released early onto the streets by the criminal justice system of the USA than have innocents been executed by the same system. So if you want to talk about risks...there is plenty to go around. It is not the goal of the criminal justice system to execute innocent people or to release prisoners that eventually murder innocent citizens.

[silvanski 1]

There were other important death penalty developments last year: the number of death sentences continued to fall,

Yep, the number of executions (9) in Texas was the lowest in years -and lower than Cali- since 'life without parole' became an option

We used to have an express lane for death sentences here

[Ban Hammer 13,334]

http://www.visajourney.com/forums/index.php?showtopic=72588

[peejay 327]

Yep, the number of executions (9) in Texas was the lowest in years -and lower than Cali- since 'life without parole' became an option

We used to have an express lane for death sentences here

Harris county, TX is no longer the "death penalty capitol" of the USA. Some other county in TX has taken over this dubious title. I read that in the Houston Chronicle a while back, but I don't remember all the details or what county got the distinction.

There are still lots of murderers on death row waiting execution. Here is the link to the official TX Dept. of Criminal Justice website. Some of the new convictions have not been updated, but if you click on the "offender information" tab it will have a photo of the murderer and the details of the crime that landed them where they are. It is enlightening if you have time to go through them. I find it rather difficult to sympathize with their plight after reading what they did to get where they are at. I find it unfathomable that many people are more outraged that these murderers get executed than they are outraged at what these murderers did to get on death row. Whether they are assessed life without parole or death...these kind of people should never be allowed back out into society. But there are always some folks that believe these people can be "rehabilitated" or sympathize with them for whatever odd reasoning. So you can never be 100% sure these murderers won't ever be released, escape, or even kill again in prison. The only thing that is certain...dead people never kill again.

http://www.tdcj.state.tx.us/stat/offendersondrow.htm

http://www.tdcj.state.tx.us/stat/deathrow.htm