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October 27, 2009

American Law Institute Council votes to withdraw Model Penal Code section on the death penalty

As reported in this postat the Death Penalty Information Center, the "Council of the American Law Institute (ALI) recently voted to withdraw a section of its Model Penal Code concerned with capital punishment because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."   Here are more details from the DPIC:

The Council based its decision on a study it commissioned to look into the practice of the death penalty since the recommendations were made in the Model Penal Code. The recommendations for how to make the death penalty less arbitrary had been adopted in 1962 and were cited by the U.S. Supreme Court in its 1976 opinion allowing a reformed death penalty to be reinstated. Section §210.6 of the Code defines cases appropriate for capital punishment, aggravating and mitigating circumstances, and special sentencing procedures, and was intended to meet significant concerns regarding the practice. This move essentially withdraws ALI from any attempt to fashion an acceptable death penalty because the system has proven to be unworkable.

The study requested by ALI was prepared by Carol and Jordan Steiker [and is available at this link]....

The Council to the Membership of ALI voted against taking a stance on capital punishment, but also voted against undertaking a project to revise or replace section 210.6, while voting in favor of withdrawing the death penalty section from the Model Penal Code.

According to the report submitted by the Council to the Members of the ALI, “Unless we are confident we can recommend procedures that would meet the most important of the concerns, the Institute should not play a further role in legitimating capital punishment, no matter how unintentionally, by retaining the section in the Model Penal Code."

This is an interesting and notable development, though I think it mostly spotlights the strong view of most academics — in contrast to most members of the voting public — that it is preferable to try to end rather than to mend the modern administration of the death penalty.

October 27, 2009 at 09:42 AM | Permalink


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Carol and Jordan Steiker (brother and sister) are good people and extremely bright. I have debated both of them (separately). Still, each is an unvarnished opponent of the death penalty and has been for years. To ask them to prepare a report on capital punishment is roughly akin to asking Donald Rumsfeld to prepare a report on the Iraq war.

Posted by: Bill Otis | Oct 27, 2009 7:53:37 PM

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.

Doug, I suspect this is still happening.

As in:

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.

My hats off the Otis and Scheidegger, for their considerable restraint.

Posted by: Dudley Sharp | Jan 5, 2010 8:57:34 AM

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