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 Now, the Institute has withdrawn its support from that framework.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.