Legal News

In Compromise, ALI Dumps Capital Punishment Project

By Ashby Jones

Is it just us, or does it seem like we’re in the throes of an upheaval in the administration of the death penalty? Just last month, we blogged the news out of the Death Penalty Information Center that, while executions were up slightly in ‘09, juries appear increasingly less willing to impose them. In the meantime, states continue to abandon the practice (New Mexico being the latest), and hardly a month passes without word of another death-row inmate exonerated by DNA evidence.

The latest move on this front comes to us via the NYT’s Adam Liptak, who writes today on the American Law Institute. Last fall, ALI, “which created the intellectual framework for the modern capital justice system almost 50 years ago,” pronounced its efforts a failure and walked away from its death-penalty work.

According to law professors quoted in Liptak’s piece, the move is significant: "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."

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty.

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."

According to Liptak, a study commissioned by the institute said 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.

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."

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," 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."

Full post as published by Law Blog - WSJ.com on January 04, 2010 (boomark / email).