No more Model Code on capital punishment

The model on which modern U.S. death penalty jurisprudence is based is no more.
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."

A world of discussion about the death penalty

Often an item on international agenda, capital punishment is again a topic of legal discourse inside the United States.
Views from elsewhere:
Of the 47 states comprising the Council of Europe, 46 have ratified Protocol No. 6 to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, which abolishes the death penalty in nearly all circumstances (Russia's the lone holdout). Nearly all are states parties to Protocol 13, which puts a total ban on the penalty. Ratification of similar treaties in other regions, such as the inter-American system, is less consistent. Last week, as our Opinio Juris colleague Kevin Jon Heller posted, the Third Committee of the U.N. General Assembly's given its support, by a vote of 99 "yes," 52 "no," 33 "abstain" -- to a draft resolution calling for abolition of capital punishment. For news media at home and abroad, the United States' opposition to the draft was taking "sides with Iran and Sudan"; it was, in the rough words of Der Spiegel, "in bed with dictators."
It's against this backdrop that U.S. discussion's heating up at 2 different sites:
1st is the U.S. Supreme Court. It's considering the constitutionality of the methods that states use to execute condemned persons by lethal injection, the means employed in nearly every state that retains the death penalty. Oral argument will take place on January 7, 2008, in Baze v. Rees, the case whose pendency appears to have effected a de facto national moratorium on executions, although on a case-by-case rather than across-the-board basis. (Nor may this be the Court's only opportunity to mull the death penalty this Term. The Court likely soon will consider a petition to review a challenge to a state law authorizing execution as punishment for a nonfatal sexual assault on a child, Kennedy v. Louisiana, according to a SCOTUSblog report.)
2d is the American Law Institute, an association of lawyers, judges, and academics devoted to the study and drafting of law-reform measures. A current project involves revisions in the sentencing provisions of the Model Penal Code that ALI promulgated in 1962. Inclusion in the Code of a detailed framework for adjudicating the death sentence had the unintended effect of legitimating the decision of some U.S. states to retain rather than abolish the punishment, as Professor Franklin E. Zimring's detailed in The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code. Last spring, 2 other ALI members, Professors Ellen S. Podgor and Roger S. Clark, moved to have ALI state its opposition to capital punishment. Their motion sparked further debate, in the form of: a report from an Ad Hoc Committee on the possibility of future study of the death penalty, in a project separate from the sentencing project now under way; and, from now through this Sunday, November 25, conduct of an online forum on what to do next. Several ALI members already have weighed in on various sides, among them IntLawGrrls Elizabeth Hillman, Mary Coombs (our alumna), and yours truly. If you're an ALI member who hasn't yet done so, log on and add your 2¢ here.