A recent New York Times article reports that the American Law Institute has given up and disavowed its previous work on creating a model capital punishment code for legislatures to follow. The significance is that a major intellectual body of legal theorists made up of 4,000 judges, lawyers and law professors will no longer "tinker with the machinery of death" in hopes of creating a fair and workable legal framework for implementing the death penalty.
The American Law Institute creates restatements and model codes for the purpose of attempting to synthesize law amongst the 50 states and the Federal Government. Congress and state legislatures can then study these model codes and choose to adopt, amend or totally disregard the language in creating their own statutes. The legal profession, ranging from first year law students in a criminal law class to Supreme Court justices, often uses these codes as well. One example is the Model Penal Code from 1962 which contains provisions for capital punishment. The Supreme Court looked to the Model Penal Code when deciding to reinstitute capital punishment in Gregg v. Georgia.
The drafters of the Model Penal Code had two twin goals in their capital punishment framework. First, they hoped for individualized decisions as to who should be executed by having juries balance aggravating factors against mitigating factors. Second, they hoped to create systematic fairness. In October, ALI decided the system was irrevocably broken. While some within ALI wanted to denounce capital punishment, the decision represents a compromise. The resolution adopted at the Annual Meeting and now accepted by the Council reads as follows:
“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.”
A study commissioned by the institution goes into more detail saying despite these twin goals, the system is plagued by racial disparities, enormous expense, underpaid, overworked and/or incompetent defense attorneys, the risks of executing innocent people, and problems of politics entering judicial elections. Many commentators say this move pulls the rug out from under the intellectual justification for the death penalty seeing as how the American Law Institute was the only scholastic legal institution still in support. The American Bar Association has called for a moratorium on capital punishment since 1997.
