American Law Institute to Vote on Death Penalty

ALI to Vote on Death Penalty
In 1962, the American Law Institute (ALI) promulgated the Model Penal Code (MPC). While saying it did not want to take a position on the death penalty, the MPC incorporates Section 210.6 which seeks to ameliorate concerns about the arbitrary administration of capital punishment and to provide meaningful guidance in drafting death penalty statutes. Section 210.6 was ignored for ten years until the Supreme Court invalidated the death penalty raising concerns about its arbitrary and discriminatory administration.

Thereafter, many states readopted the death penalty using Section 210.6 as the template “hoping in part the prestige of the Institute would help to validate these new efforts.” [Professors Carol S. Steiker (of Harvard Law School) and Jordan M. Steiker (of University of Texas Law School), November 2008 Report to the American Law Institute].

In reauthorizing the death penalty in 1976, the Supreme Court relied on the expertise of the Institute and especially the guided discretion furnished by Section 210.6 in upholding the Georgia, Florida and Texas death penalty statutes.

Each year since then, however, the Supreme Court has continually adjusted the approach to administration of capital punishment. “It is clear that the Court’s attempt to regulate capital punishment—largely on the model provided by the MPC— has been unsuccessful...” [Steiker].

On May, 19 2009 the American Law Institute will vote on a proposal made by ALI leadership to withdraw Section 210.6 from the MPC and take no position pro or con on the issue of capital punishment. [The Steiker Report recommended that the Institute withdraw support for Section 210.6 AND issue a statement calling for rejection of the death penalty as a penal option reflecting its view that the death penalty should not be imposed unless its administration can satisfy a reasonable threshold of fairness and reliability. The Steiker Report says there are currently ‘intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment’].

The leadership of the ALI believes neutrality is its only option since constitutional law permits capital punishment, the punishment has substantial support among the citizenry, substantial consensus within the Institute is unlikely and the Institute’s views are not likely to influence the views of legal policy makers.

May 13, 2009