For nearly 50 years, legal theorists, policy makers and law school educators have referred to the American Legal Institute in articulating and clarifying the case for capital punishment. As the New York Times reported yesterday, the ALI has abandoned its work on the issue. The development may accelerate the trend of states and juries backing away from imposing capital punishment, and it may also affect the way lawyers are educated.
Or maybe not. The Times article quotes a blogger for one pro-death penalty group who argues that the real headline is that the group rejected a call for the ALI to come out against capital punishment altogether.
First, some background. As the Times story explains, the ALI's "Model Legal Code" has exerted powerful influence on death penalty law:
"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 re-instituted 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 ALI resolution, adopted last October, strikes down the portion of the Model Penal Code that sets conditions for executions because of, "intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.” The resolution is a compromise between members who wanted the ALI to come out against the death penalty outright, and those who said such an about-face would hurt the group's credibility.
The stance taken by the ALI reflects a critical view of the death penalty that is widely shared, even among some advocates. The Headmistress at The Common Room blog expresses the ambivalence felt by many:
"In reality, I am not sure our trials are fair, our juries are truly a jury of peers, or our lawyers and judges as judicious as they should be, our standards of evidence as sound as they should be, so I am deeply ambivalent about the application of the death penalty and would not be able to vote for it were I serving on a jury."
Ashby Jones at the Wall Street Journal noted that the ALI resolution seems to be part of a trend:
"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."
Indeed, FindLaw's Kamika Dunlap reports that death penalty opponents see the ALI resolution as a "turning point" in the debate over capital punishment. That's certainly the way Jill Filopovic at Feministe sees it:
"When the one group who tried to make an intellectual argument for the death penalty admits defeat, we are headed in the right direction."
Kent Scheidegger, the pro-death penalty blogger for the Criminal Justice Legal Foundation mentioned earlier, argues that the ALI's Model Penal Code had really been mucking up the administration of capital punishment, so this resolution removes an obstacle. Beyond that, he contends that the ALI-commissioned study that buttressed the resolution was conducted by two death-penalty opponents who infected the findings with their bias. The bottom line, Scheidegger says:
"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."
However, if it's true that the ALI's work has a major influence on legal education and policy, it's hard to see how this resolution can fail to have an impact. What do you think?
Media credit: American Legal Institute
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