Adam Liptak from the New York Times:

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number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely.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.

How many other backwards and illogical policies have they designed to be unleashed on the public?

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.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at the 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.”

Change is slow in this country. Before we can make changes we have to change our thinking. It has been known for a long time that people with darker skin were more likely to be executed. Different states have different standards. In Texas they recently executed a mentally retarded man.

It is not just the capital justice system that is broken, the whole justice system is broken. I found this out the hard way. It has taken a long time to get those in power to even look at the situation because many of them benefit from the corporations supporting the gulags in this country. We also know many innocent people have been sentenced to death row. We have news media who basically try people before the case ever gets heard by a jury. The juries are then tainted. This influences the largely corrupt and incompetent systems of prosecutors who also work with bad science. The laws are manipulated to be used against certain people and manipulated to let others be free of prosecution. Evidence is also either held back or manufactured so they can shape the case when the evidence is not supportive for guilt.  They use cases for their own notoriety and advancement. Judges do the same thing, influenced by public opinion which may not be based in truth due to the hype by the media or manipulations by prosecutors. Due process is often lost to a foregone conclusion of guilt.

A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.

We always have a war on something in this country when someone behind the so called war is making money off of it, such as the war on crime or the war on drugs(which removed people from the role of patient and inserted them into the role of criminal in more than one way). The so called war on crime which was fueled by the right wing and corporations which made money off the supplying of or building of prisons. The legislature poured huge amounts of money into these so called wars due to being lobbied by companies.

By underpaid and often incompetent defense they mean public defenders. Indigent clients are not given a defense. If you truly have a justice system which is based on the accused being innocent until proven guilty in  an actual democracy you provide excellent defense for everyone accused. The truth is we have neither a fair justice system nor a democracy. Indigent clients are not given a defense. If the goal is to fill up the prisons so they are overflowing and more prisons have to be built you want to insure those accused have little or no defense. You also want to insure they will be harshly sentenced, thus lobbying for lengthy sentences. You will want to pass legislature to keep judges from using good common sense in sentencing(set sentencing), and three strike laws. You want to make sure little money is spent to support those in the community who could be kept out of the prisons with social services, support systems, education, or counseling.

Another piece of the puzzle to fill up the prisons is to make the mentally ill accountable even if they did not know what they were doing. Change the attitudes of the prosecutors, defense laws, the MSM, and thus the public that just because you have a debilitating mental illness is no excuse for striking out at one of your more frightening hallucinations or delusions. The mentally ill who often are homeless to begin with have been criminalized, preyed upon in prisons, denied medication or just given medication to oversedate them, and made sicker by being put in isolation because jail staff don't want to put up with the behavior of a mentally ill person. A system of plea bargaining is set because the defense lawyers for the indigent don’t have trial skills nor the time to prepare for a trial and the states do not want to fund defense. The states do however fund prosecutors and law enforcement to prosecute using often jail house snitches who are promised lowered sentences or special privileges for testimony, really bad science, and just plain old everyday blatant lies which people believe because a prosecutor is telling them. Prosecutor and liar are often synonymous and most people don’t know that until they themselves are affected by a legal case, then they are outraged and shocked. Some who have money for good lawyers have recently been in the news because their cases were dismissed due to prosecutorial misconduct. This does not happen if you are poor and they get away with much worse fabrications and lies with the powerless indigent population.

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.”

The beginning of change, I am happy to see it. Let’s hope it doesn’t take too long many are suffering.


Mel said...

Thankfully Alaska has no death penalty (though there's a bill introduced in last session of the legislature to attempt to give us one).

You're so right about the war on drugs & similar wars. Correctional populations especially climbed after 1980, when Reagan instituted the war on drugs, & it's been nonstop increase ever since. I've watched it in the tables & charts I've created over the years in my job at the UAA Justice Center -- this figure really tells the story. Sometime in the mid to late '90s we became the nation with the highest incarceration rate per capita population in the world (Russia previously held that dubious honor.)

Some hopeful signs in the justice system: therapeutic & mental health courts. We've run some articles about them in the Alaska Justice Forum -- you may want to subscribe if you don't already by giving us a call at the UAA Justice Center. I'd like to see more restorative justice -- in which attempts to repair the relationship between an offender & the community instead of just tossing him or her behind bars.

Unfortunately there's a significant part of the population who still seems to think that incarceration & brutalization are the best way.

I added your blog to my RSS feed yesterday -- I can't understand why I wasn't following it before!

-- Mel Green

Celia Harrison said...

Mel, I follow the UAA Justice Center Posts, but I have not subscribed yet, I will. I am thankful your program is there since there is no law school in Alaska. The lack of a death penalty in Alaska is a blessing especially considering the state of the public defender agency and the DOL. I have used a couple of the charts from the research in my posts. I am one of the people who has found out the hard way that the justice system and prison system are not what people think they are. Thanks.

dudleysharp said...

The ALI chose two anti death penalty activist law professors to prepare a review of 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, one of the authors of the ALI report, 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.

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 and anytime since.