Eliminate the Death Penalty

(Lexington Herald Leader
Sunday, September 5, 2010)

Eliminate the Death Penalty
by
Donald Vish

The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.

The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.

In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death. Why? A bad crime or a bad lawyer or bad luck?

The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.

Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.

The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.

The death penalty is riddled with contradictions and contradictory imperatives.

Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of

* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.


There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.



Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty

FLAWED

Bad Design

Missing Pieces

The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.

The American Law Institute intended to remain neutral on capital punishment when it crafted the model penal code in 1962. The code contained, however, a template for considering conflicting constitutional values in death penalty cases that required due process of law based on objective criteria and individual consideration of the special facts and circumstances of each capital case.

The guided discretion construct was ignored by the states until 1972 when the United States Supreme Court invalidated all state death penalty laws for failing to provide due process of law in a nondiscriminatory manner that weighed the competing interests of even-handed administration of law with individual consideration of each capital case.

States attempted to fix the problem by adopting the guided discretion template of the MPC. In 1976 the Supreme Court approved resumption of capital punishment on the strength of the MPC endorsement.

As a result, the ALI gained first-hand experience with the only law beyond its expertise: the law of unintended consequences.

In October 2009, the ALI withdrew its support for the guided discretion template and a legal report evaluating its application over the years said it had not worked.

It’s now time to look at all other legal and administrative aspects of death penalty administration to determine whether the system is merely broken or intrinsically flawed beyond repair.

253 words

dv

11-18-09

Collision Course

Collision Course

The death penalty has put the constitution on a collision course with itself.

The path to collision was cut and cleared in 1976 when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion’ template proposed by the Model Penal Code (MPC). The ‘guided discretion’ approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.

Rhetoricians have a name for rubrics like ‘guided discretion’: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).

The precise place where justice fits between ‘guided’ and ‘discretion’ is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding then reaching the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.

As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society’s search for justice, competing constitutional values get in the way of one another and, like Virgil’s army, crowd the field so totally that none has room to do its work.

The sponsor of the MPC, The American Law Institute (ALI), has now withdrawn the guided discretion template and its legal consultants Professors Carol S. Steiker, Harvard Law School and Jordan M. Steiker, University of Texas Law School, have declared the ‘guided discretion experiment’ unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model---the template is merely a mirror for what is required by the constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.

As courts grapple with the balance between the two, justice in death penalty cases is becoming to the constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.

Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can’t uphold it because the applicable legal standards collide with each other.

474 words

Saturday, November 14, 2009

DV

Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.

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