Traynor: The death penalty is unworkable

Fifty years ago, the American Law Institute provided the legal framework that underlies this country’s implementation of the death penalty. Now, the Institute has withdrawn its support from that framework. Michael Traynor, former president of the Institute, had a nice op-ed piece in the LA Times today explaining why the Institute took that action: The death penalty — it’s unworkable.

In the decade after the institute published its law, which was part of a comprehensive model penal code, the statute became the prototype for death penalty laws across the United States. Some parts of the model — such as the categorical exclusion of the death penalty for crimes other than murder and for people of limited mental abilities — withstood the test of time. But the core of the statute, which created a list of factors to guide judges and jurors deciding when to sentence someone to death, has proved unworkable and fostered confusion and injustice.

Now, after searching analysis by our country’s top legal minds, the institute has concluded that the system it created does not work and cannot be fixed. It concluded that we cannot devise a death penalty system that will ensure fairness in process or outcome, or even that innocent people will not be executed.

The use of future tense (“or even that innocent people will not be executed”) is a delicate way around the obvious truth: Innocent people have been executed. Statistically, it’s a near-certainty.

I am speaking for myself, not as a representative of the institute, but I can say with certainty that the institute did not reach these conclusions lightly. It commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively. A strong consensus emerged that capital punishment in this country is riddled with pervasive problems.


These problems are entrenched in the death penalty system, both in California and nationwide. The cumulative result: Executions remain as random as lightning strikes, or more so, and that is the very problem the institute’s model statute intended to fix. In addition, across the country, at least 139 individuals have been released from death row after establishing their innocence.

If a similar degree of effort had been devoted to establishing the innocence of those already executed, I have no doubt we’d have dozens of examples of that, too.

46 Responses to “Traynor: The death penalty is unworkable”

  1. Smith Says:

    “There are about 700 people on death row in California, and it can take 25 years for mandatory appeals to be completed. Since 1978, California has executed 13 prisoners, while 72 have died of old age or other causes.”

    You know the right-wing response to this issue will be to curtail the appeals process. “If they are in jail, they must be guilty” ties in with “kill them all” to form the basis for right-wing “justice”.

  2. enkidu Says:

    and what else floats in water?

  3. shcb Says:

    a duck

  4. Smith Says:



    Red Balloon?

  5. shcb Says:

    Life of Brian, right enky?

  6. shcb Says:

    Holy Grail

  7. enkidu Says:

    she turned me into a newt!


    well, I got better… BURN HER!

  8. Smith Says:

    Any object whose density is less than roughly 1 g/ml at 4 degrees Celsius and 1 atm?

  9. shcb Says:

    Funny stuff

    I was in to see my doctor once, I had dropped molten solder on my arm and like a typical male I cooled it with beer, peeled the metal off the meat (the skin was gone) and medicated the pain with more beer, not externally though. A couple weeks later it was hopelessly infected so off to the doc I go. I love my doctor to death but she has a brutal bedside manner, at least to me “what the hell is wrong with you today?”. When I showed her the wound I thought the little student nurse was going to pass out. After a suitable tongue lashing I was patched up, as I was leaving the little nurse asked how my arm was doing (she had to leave the room), without missing a beat I said it was going to have to be amputated, the blood drained from her face to which I said “ah, it’s just a flesh wound” in my best British accent. My doctor launched into the whole skit in the hallway walking away from me as I stopped and pleaded “come back here and I’ll bite your ankles” this poor little girl just rolled her eyes like she was watching the two idiots she was.

  10. leftbehind Says:

    Smith – returning to your initial statment: What is the left wing response? What forms the basis of left wing “justice?”

  11. leftbehind Says:

    The basis of left wing “justice” on the specific topic of the death penalty, without broad protestations of “compassion” or inspiring Obamaisms, please.

  12. Smith Says:


    Please explain why I should waste time responding seriously to a self-admitted troll. Thanks.

    P.S. I am not an Obama supporter. Go third party.

  13. leftbehind Says:

    If you can respond seriously, please do. If you can’t, don’t bother. If what you say is worth saying, my trolldom makes little difference, does it? You’ve got a sympathetic audience here, regardless of what I might or might not think of the points you make, and Enkidu or one of the others will be happy to jump in and defend your “e-honor” if things get too scary.

  14. shcb Says:

    I think that is a fair question

  15. shcb Says:

    If you are third party, I would assume you will pick one that is to the left of Obama. Lb’s question doesn’t seem to be a R vs D question. But left (far or near) and right (far or near)

  16. leftbehind Says:

    A fair question, I thin kas well…and fairly easy to answer, I would assume.

  17. Smith Says:


    Don’t feed the troll is a great motto. Your shtick may work on Enky, but I have no real use for someone who can’t even own up to his own beliefs. I know you are ashamed to admit you are a Republican, but anyone can see through your nonsense. If you feel the need to wave your e-penis at someone, stick to Enky.

  18. shcb Says:

    So right wing justice is “kill em all”, it is somewhat accurate to say it is “kill ’em all that deserve it”. If that is true is left wing justice “let ’em all loose”? Seems a fair question.

  19. leftbehind Says:

    “Stick with Enky?” Why, because you’re so far out of our “league?” You’re just Enky with a more advanced vocabulary.

  20. Smith Says:

    Whatever you say, chief.

  21. leftbehind Says:

    Besides, Enky’s a moderator and gets to write his own threads. Who are you?

  22. Smith Says:

    I am Smith. Nice to meet you, chief.

  23. leftbehind Says:

    Charmed, I’m sure.

  24. leftbehind Says:

    Since we’re getting aquainted and all, I was wondering if you might have any views on the Death Penalty you’d like to share with the rest of us, specifically on the topic of the Death Penalty in the State of California.

  25. leftbehind Says:

    At the moment, there are about 700 people on Deth Row in the State of California. Given that the appeals process in the State can take upwards of twenty-five years to exhaust itself, California has only executed 13 prisoners, while 72 have died of old age or other causes. What are your feelings on this state of affairs and, given your stated views as to the “right wing” response to the situation, could you explain what you feel would be the “left wing response,” and – if it is not asking too much, might you expand on your view of that response?

  26. Smith Says:

    Perhaps Enky is better qualified to give you a response there, chief. He is more on your level. After all, you seem rather enamored with his mod powers. I’m sure my response would only disappoint you. I wouldn’t want to let my new friend down.

  27. shcb Says:

    Typical liberal, you press em a little and they clam up.

  28. Smith Says:

    You are free to believe that which you choose.

  29. leftbehind Says:

    Look, if you’re that scared of me, how about this: You say whatever you want to and I won’t even respond. Anybody who has read any of your postings knows you’re not afraid to have a strong opinion, nor are you afraid to express it directly. The only thing you’re afraid of is that I’m setting you up to make you look foolish, or otherwise assault your e honor with some nefarious scheme or another – so let me take myself out of the equation. Respond as you will to the question without any interference from me, or let’s just agree that you can’t and move on…

  30. Smith Says:

    Now why would I give pleasure to a troll, especially such an inadequate one? What would I gain from such a venture? I know that you are incapable of providing an intellectually stimulating discussion, so do not really see any benefit to be gleaned from my efforts. I am getting far more entertainment from our present interaction than I would receive from acquiescing to your request. It appears to me as though attempting to honestly engage you would result in nothing of value, so it seems as though I would be best served by continuing on the path that we have been traveling thus far.

  31. leftbehind Says:

    SHCB – While I won’t necessarily concede that “clamming up when pressed” is typical of all liberals, I certainly can’t say you’re wrong in this case. The weird part is that I really didn’t really lean on him all that hard. Most of these guys can at least get their point across before they fold.

  32. shcb Says:

    I was just trying to smoke him out. I’ve found that most people, no matter what the subject or which side of the argument they are on, if they have given it some thought, will have strong opinions on the subject and will defend those positions. Those that haven’t really given a lot of thought to the subject or are looking at it from an emotional standpoint are the people that will clam up and resort to name calling or platitudes.

    In this case Smith tossed out a platitude that the right’s form of justice is kill ’em all. Which of course is silly. When pressed he didn’t want to admit it was an exaggeration, he could have just offered an explanation as I did above that he was exaggerating, he could have modified his statement to the right is more inclined to kill than the left, fair enough. Of course, as you eluded to, he would have had to defend the position that not killing the bad guys was the right thing to do, evidently he doesn’t feel he can do that so he clams up.

    As so often happens in these cases he ends up looking more silly with his avoidance of the issue, especially since he brought it up, than if he had just taken a minor hit and admitted an exaggeration. The cover up becomes worse than the crime.

  33. Smith Says:

    You are free to perceive the matter in that fashion, if you so choose. Far be it from me to deny you such a small comfort. I will continue to stand by both my initial claim about right-wing justice and my principle that LB is a troll who does not deserve to receive the response he demands. Feel free to malign my character and assign whatever motives to my actions you desire. Doing so brings no harm to me, and obviously gives you some sense of satisfaction.

  34. shcb Says:

    Will do.

  35. leftbehind Says:

    Yes, SHCB and the kicker is that if he was really concerned about “wasting his time on trolls” he wouldn’t have wasted more time typing long paragraphs telling us he wasn’t going to say anything than it would have taken him just to make his point. Similarly, if he really wasn’t concerned about our “interpretations” of his inability to answer a simple question, he wouldn’t keep coming back to expound at length about how unconcerned he is about what we say every time one of us posts a new comment. “If he was dying, he wouldn’t carve ‘Aaaaaaaarrrrghhhh…” He’d just say it!”

  36. shcb Says:

    I was thinking the same thing. The problem is he probably has some good points he could make, so make one, test the water, if you give him a snarky rebuttal then it would be appropriate to respond in kind or bow out of the conversation. I’ve certainly made comments I can’t defend before in the heat of battle, but if you want to continue the conversation as an adult, admit you exaggerated or said something off the cuff and move on. In my last conversation with Smith I made some silly remark that made sense to me at the time but really didn’t add to the debate so instead of going down that tangent I just retracted my remark it simply wasn’t worth the ink to try and explain it since it was silly to begin with. Part of having these discussions is knowing when someone is serious or not. Smith usually does a pretty good job of asking me if I’m serious or not, and I respond truthfully. Oh well.

  37. Smith Says:

    As I said earlier, I am having far more fun seeing how long I can keep stringing you guys along than I would be actually trying to engage in a serious discussion with someone who has, on numerous occasions, proclaimed that he has no desire to attempt to participate in an honest debate. The fact that you keep begging for a reply suggests that, by refusing to succumb to your wishes, I am bothering you far more than you are bothering me.

  38. Smith Says:


    Did you watch the Super Bowl? I smoked some pork and chicken and had some friends and family over. Nothing like beer and BBQ to finish off a weekend.

  39. knarlyknight Says:

    Well done Smith.

  40. shcb Says:

    I did, I’m not much of a football fan since Elway retired but I watched all but the first quarter, what a good game, it’s hard to get excited about a sporting event if you don’t have a rooting interest but that was such a good game it was enjoyable. What a half time show, my God that was great, to put on a light show like that with what, ten minutes to set up? And just music, no wardrobe malfunctions save Townshend’s coat flopping on his guitar. I smoked a leg of lamb on Saturday, inserted fresh herbs deep in the meat, injected wine, good stuff.

    Don’t worry about LB and I, we were actually having a real discussion about you at the end there, it’s kind of nice to have someone that agrees with me at least a little every now and then.

  41. Smith Says:

    The first quarter was worth watching if only to see how much the game turned around. The Saints looked rough at the start, their comeback was pretty impressive. Although the score remained close until just before the end, the Saints were definitely the dominant force after the 1st. They had issues actually getting into the end zone for a while, but they did a good job moving the ball.

    It was nice seeing something relatively simple for the halftime show, as opposed to the usual attempts at throwing has many musicians on the same stage as possible. The Who are showing their age a bit, though. Townshend’s backing vocals are not what they used to be. The light show was a nice touch. Impressive, but not gaudy.

    I’ve just recently gotten into smoking. Still trying to work out the timing. Last night was a big improvement over the previous efforts. I’ve got enough leftovers to last me through most of the week. :)

  42. shcb Says:

    I just got my pit a couple months ago as well, my trouble is getting enough temperature in the cold weather, I bought a fiberglass welding blanket and I have some 1 inch ceramic insulation we use on our extruders, with those two items I can insulate the cooking area and with a small section of the ceramic even the fire box to keep enough heat in the cooking area, by folding more or less layers of the blanket I can adjust the insulation level. My first few attempts were pretty bad, I had beef jerky in there for 6 or seven hours, it was bad. A friend of a friend that smokes a lot only smokes for a couple hours and then finishes in the oven at low temperature, he says all the smoke flavor is in the first hour or two and the house oven cooks more evenly and accurately. I haven’t tried that yet.

    I noticed that about Pete as well, I kind of liked the fact he was a little out of step and off key, I knew it was live that way. There is a country western song, I think the title is “just play the song” it is about all the hype and glitz of the music industry, with the artists just wanting to play the song. I felt that is what we saw last night on one level and the lights on the other, it was very well done, I hope that is the formula into the future.

  43. Smith Says:

    Yeah, the temperature was too low on my first attempt. After 7+ hours, the meat was cooked through, but it didn’t really get that tender, falling apart texture. It was ok for slicing, but it could not be fork-pulled. It was also in there so long that the smoke flavor had drowned out the taste of the meat. It was wrapped in foil, but I guess that was not enough to counteract the extended exposure.

    Last night’s effort was slightly overdone, but I poured some of the juice that was trapped in the foil after cooking on the meat, and that fixed the dryness. My next step is to work on improving the seasoning.

    I heard Daltrey was a bit disappointed with the show, but Townshend said he just went out and had fun.

  44. shcb Says:

    I would think singing medleys would be hard from an artist’s standpoint, hard to shift gears like that, especially with a songs from Quadraphinia (sp?) where you are picking a few minutes out of an opera that was written to last an hour or more.

  45. shcb Says:

    I told my daughter last night that with that light show Alvin and the Chipmunks could have been performing and it would have been good, Roger is just being hard on himself, it was very enjoyable.

  46. Smith Says:

    I think his complaint was exactly what you mentioned above. He did not care for the format. A 12 minute medley is not his preferred style. The light show did a nice job of complementing the performance without being distracting.

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