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ALI Compromise on Death Penalty

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The American Law Institute recently adopted a compromise position on the death penalty. The background is in a report available here. The Model Penal Code section on the death penalty was withdrawn, a move many supporters of capital punishment, including CJLF, agree was proper. The proposal for ALI to take a stand against the death penalty was decisively rejected.


The 1962 Model Penal Code has a section for capital punishment. It was pretty much ignored until Furman v. Georgia, when the states had to rewrite their capital punishment laws. Many of the states followed the MPC approach, which called for a narrowing of the eligible class of murderers with a finding of an aggravating circumstance, followed by a discretionary sentencing phase. The Supreme Court approved this broad outline in Gregg v. Georgia and its companion cases, although subsequently it declared unconstitutional one of the MPC's aggravating circumstances.

As the ALI was revamping the MPC sentencing provisions, a couple of members proposed that the ALI come out against capital punishment. A committee then deliberated and outlined the possible actions as "(a) call for abolition of the death penalty; (b) withdraw § 210.6 from the Model Penal Code; and/or (c) undertake a project to revise § 210.6."

Then they decided that another report was needed. One would have expected an organization of ALI's reputation to have assigned that task to a respected scholar who was not identified with either side or perhaps a pair, one from each side. Oddly, the task was assigned to Carol and Jordan Steiker, both dyed-in-the-wool opponents. Their report is just what you would expect, reciting the anti side's version of every disputed question right down the line, and leaving out inconvenient truths contrary to the predetermined position. For example, in the racial disparity section, they cite the Baldus study as if it were Gospel and fail to mention that the federal district court found it was garbage. (See my article on the subject.)

The Steikers' recommendation was:

withdrawal of § 210.6 with an accompanying statement to the effect that, in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment, the Institute calls for the rejection of capital punishment as a penal option.

The first part of that recommendation was what the council was already headed toward, and it is an action that most supporters of capital punishment have no problem with. Capital sentencing procedure in the post-Gregg era is so micromanaged by Supreme Court precedents that a model statute really serves very little function. Indeed, once you get past the broad outline approved in Gregg, the MPC has caused more harm than good.  The states that adopted the "especially heinous, atrocious or cruel" circumstance thought they were safe enacting what the prestigious ALI recommended, only to see their statutes declared unconstitutional in Maynard v. Cartwright, with a great many sentences needlessly overturned. The MPC also recommends that a single dissenting juror can force a life sentence over the objection of the other 11, an unwise procedure enacted by far too many states. We are perfectly OK with dumping it.

The council rejected the latter part of the Steikers' recommendation to take a stand against capital punishment. The recommendation, on pp. 3-4 of the report, was:


A. The Institute, without need for further study or a full project, should withdraw § 210.6 from the Model Penal Code.

B. The Institute should not (as it did not in 1962) take a position on whether capital punishment is ever an appropriate punishment and thus should not endorse capital punishment or call for its abolition. (ALI therefore should not approve the motion made by Professors Clark and Podgor in 2007 or any similar motion that may be presented at this year's Annual Meeting.)

C. The Institute should not engage in a project on capital punishment, either to revise or replace § 210.6 or to draft a separate model statutory provision.

The annual meeting of the membership passed an amended version of the recommendation: "That, 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."

This is a mixed bag. The reasons stated in Part V are neutral overall, noting arguments for and against and recommending that the ALI endorse neither. The last clause gives the opponents a small fraction of what they asked for. It implies the status quo is inadequate (which supporters agree with, for different reasons) and opines that the obstacles are "intractable." Whether they are "tractable" or not remains to be seen, and the ALI's statement doesn't add much to the debate.

So, on the main issue, getting the ALI to come out against capital punishment, the anti forces were defeated. Withdrawal of § 210.6 is a wash, as neither side saw a reason to keep it. And the anti side gets a consolation prize of the "intractable" language.

Doug Berman has this post at SL&P, noting the DPIC's spin. Bill Otis comments, "To ask [the Steikers] to prepare a report on capital punishment is roughly akin to asking Donald Rumsfeld to prepare a report on the Iraq war."

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