Fifty years ago or so, the American Law Institute (ALI) was given the profound task of devising a method of making the death penalty constitutional in a country where the Eighth Amendment of its constitution prohibits “Cruel and Unusual Punishment.” The ALI (made up of about 4,000 judges lawyers and law professors) has now announced that despite working on the task for five decades it is walking away from it as it believes the task is impossible to complete.
This is a stunning revelation that is likely to have a profound effect on the death penalty in the US and may be its own death knell.
You see, while the beloved founding fathers may have thought that death by public hanging or being drawn and quartered was neither cruel or unusual, in 1972, a more modern Supreme Court declared the death penalty as applied an unconstitutional violation of the 8th Amendment and 14th amendment (due process). The main concern of the court, which issued 9 separate opinions in its landmark decision Furman v. Georgia, was that the penalty was applied more frequently to blacks than to whites and that the whole procedure was too arbitrary in general to be fair.
A decade earlier, the ALI had developed its proposed system for a fair death penalty (an oxymoron IMO) that had been largely ignored by most states. The system called for the death penalty to be applied only in murder cases and to have two phases: a trial to decide the guilt of the defendant and second trial by the same jury – “a penalty phase” – that would listen to aggravating and mitigating factors before giving their thumbs up or down like the spectators at the Coliseum. After Furman, many states quickly jumped on the ALI bandwagon and adopted its recommendations. Sure enough, in 1976, the Supremes brought the executioner back into jurisprudence with Gregg v. Georgia, reinstating the death penalty, citing the ALI’s standards. This also made the ALI the most important pro-death penalty voice since that time. The ALI had always enjoyed prominence on legal issues but it is now generally considered the most respected think tank in support of the death penalty.
So what happened? Well the ALI commissioned an in-depth study to find out how the old ax was being applied in the US. The results made it clear that it was still being applied in a racially disparate manner; that it was more expensive for a State to try to kill a human being than to house a human being for his/her natural life because in order to be fair you had to give the condemned appeal rights; that the court-appointed lawyers for the indigent were grossly underpaid and often incompetent or ineffective; and that it appears to run too great a risk of killing an innocent person. No kidding – all of this was known to any semi-decent criminal defense practitioner. And anyone who has been near a newspaper in the last five years would have read that wrongful murder convictions are being discovered and overturned on a steady if not regular basis. If the ACLU had reached the same conclusion, this would not be news; but having this come from the ALI is ground-breaking and as the NY Times put it “represents a tectonic shift in legal theory.”
The ALI couldn’t quite shirk off its old mantle completely, however. It rejected the wishes of some of its members to have the ALI take a stand directly against the death penalty in light of its findings. Rather than do that, the ALI chose to disavow the system it had recommended and saw implemented nearly throughout the country. The statement it issued said that it did so “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment. ” In plain English, they just could not figure out a way to have a case-by-case review to allow for exceptions but that also assured that those exceptions were applied uniformly and fairly. The subjective nature of the penalty phase allowed racism and gender bias to enter the mix.
Amazingly, some death penalty fans see the ALI’s decision as a positive because it did not come out and denounce capital punishment in general but instead just said they give up trying to fix it. But that is a desperate attempt to grasp something out of nothing. To have this group of highly intelligent law professionals who worked regularly for so long on this problem stand up and say that capital punishment is not being applied constitutionally and that they don’t think they can fix it clearly means that no one can fix it. After all, what pro-death penalty group anyone possibly put together that is comprised of law professionals as intelligent and as authoritative as the ALI to pick up the sword and carry on this fight? Oh wait . . .I actually thought of one – the Bush-packed US Supreme Court led by the evil genius Antonin Scalia.
Scalia and his puppet Clarence Thomas have been two of the strongest proponents of the constitutionality of the death penalty in Court history. Alito, Roberts and Kennedy have generally followed suit. That’s 5 out of 9 and all they need. So it will be very interesting to see how future death penalty arguments before the Court are effected by the ALI’s decision. Remember that the Supremes relied on the ALI model to reinstate capital punishment nearly 35 years ago. Advocates for the condemned will surely point out that the foundation for this whole area of jurisprudence has therefore been shattered by the ALI’s statement. As Professor Roger Clark of Rutgers Law School, who sits on the ALI and pushed for the ALI to totally renounce capital punishment stated in the Times:”[The decision] pulls the plug on the whole intellectual underpinnings of [the death penalty].”
I predict that this is the beginning of the end of capital punishment in the US. More and more states will rely on the ALI’s withdrawal as support for ending capital punishment; even before this was released, some states like Illinois and New Mexico had repealed their death penalty laws. With such a major player in the arena saying that the system is beyond its skill to repair, state DA’s offices will be hard pressed to try and find an argument to support its constitutionality.
Only time will tell.