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January 4, 2010

Interesting coverage of ALI's notable death penalty move last year

Adam Liptak's Sidebar column in the New York Times this week effectively covers notable ALI news from a few months ago (which I first reported here). The piece is headlined "Group Gives Up Death Penalty Work in Frustration," and here are excerpts:

Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely.  But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“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.”

The institute is made up of about 4,000 judges, lawyers and law professors.  It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

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 reinstituted 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 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.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled.  What the institute was saying is that the capital justice system in the United States is irretrievably broken....

Roger S. Clark, who teaches at Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said.  “What this does is pull the plug on the whole intellectual underpinnings for it.”...

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.”  Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.

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,” Professor 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.”

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970.  “The death penalty was an abstract issue of little interest to me or my fellow students,” he said.  But he remembered being impressed by the institute’s work.  “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”

Things will look different come September, Professor Gross said. “Law students who take first-year criminal law from 2010 on,” he said, “will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”

I am not surprised that various academics think that a decision by the ALI driven by a group of academics is a very big deal.  But I disagree considerably with Liptak's suggestion that the ALI's decision here was the biggest news concerning the death penalty in 2009.  I have seen much more writing and heard much more talk about Ohio's switch in lethal injection protocols than I have seen and heard about the ALI's move.  Moreover, the inauguration of another Democratic President who appears to be a serious supporter of the the death penalty strikes me as likely to have a much bigger long-term impact than what the ALI has done.

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January 4, 2010 at 02:23 PM | Permalink


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As noted here last October, the American Law Institute adopted a compromise on the death penalty, rejecting the calls for it to take a stance in opposition but also withdrawing the obsolete Model Penal Code section on the subject. The... [Read More]

Tracked on Jan 4, 2010 4:32:00 PM


That the ALI is the guiding force of American law (unlike, e.g., state legislatures and Congress) is news. That the ALI THINKS it's the guiding force of American law is not news.

Ask a hundred citizens, "What's ALI?" and I believe the answer you'll get most often is, "Wasn't he a boxer?"

Posted by: Bill Otis | Jan 4, 2010 4:01:17 PM

Death penalty is dying

Posted by: claudio giusti, italia | Jan 5, 2010 10:35:15 AM

Hi. I'm an econ prof, who does law and econ. The ALI's power diminishes whenever it tries to make law as opposed to organizing law. This looks like another dimunition. For a while, we conservatives enjoyed how liberal politicians would go with the academic consensus instead of the consensus of everybody else. But then the politicians figured it out. Rats!

Posted by: Eric Rasmusen | Jan 5, 2010 4:25:08 PM

Prof. Rasmussen: I assume you teach the Coase Theorem in any course on Law and Economics. This theorem was dispatched by Pennzoil v Texaco, and the latter corporation suffered the death penalty as a result.

Do you ever teach the rent seeking theory as the Grand Unifying Theory of Appellate Decisions? The lawyer makes 99% of policy decisions of the government. And the majority of those are to enhance jobs and salaries for lawyers. This theory explains why government does nothing well, except collect taxes, and grow the lawyer profession.

Posted by: Supremacy Claus | Jan 6, 2010 3:24:47 AM

Has the ALI become non academic or is this the new academia?

The ALI chose two anti death penalty activist law professors to prepare the ALI's final review of the death penalty before their final vote against the death penalty.

ALI could not have been duped idiots here.

Even a non academic could rip some significant holes in their report.

ALI, be a bit more subtle next time and pick anti death penalty folks that some ignorant few might think are neutral. At least give some appearance of objectivity, as opposed to a blatant disregard for it.

They even misinterpreted McCleskey v Kemp, for goodness sakes. No surprise. Well, a bit of a surprise.

Jordon Steiker was in the audience at a death penalty debate at U of Texas Law School, wherein he asked me a question, along the lines of,

"Dudley, are you telling me I have been improperly teaching McCleskey". My reply was along the lines of "Yes, I suspect most, if not all law professors do." Then, I explained why. I guess he forgot.

From ALI's death penalty review, page 29 PDF, http://www.ali.org/doc/Capital%20Punishment_web.pdf, as roughly, in McCleskey,

" . . . the study concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks . . ."

Complete, utter nonsense.

The study results were by an odds multiplier of 4.3, not 4.3 times. What's the difference? An odds multiplier of 4.3 MAY FIND a differential of only 2-4%, whereas 4.3 times is a differential of 330%.

Huge variables. Some explanation:

1) "The Math Behind Race, Crime and Sentencing Statistics"

2) See "The Odds of Execution" within "How numbers are tricking you"

NOTE: In the first review, by Paulos, I did an analysis of the Philadelphia study by Baldus. The oft wrongly interpreted 4 times differential, was an odds multiplier of 4. My analysis found that if only 2% more whites were sentenced to death and 2% fewer blacks, there would be zero statistical difference in sentencing, as opposed to the wrongly interpreted 300% differential represented by 4 times.

Baldus could have fully explained this in the Philadelphia study, just as he could have, way back in McCleskey.

Posted by: Dudley Sharp | Jan 6, 2010 6:44:00 AM

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