This is kind of a big deal:
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.
***“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.”
***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.
They had to compromise to come to an agreement, so don’t expect them to be working to undo the damage they have done. In fact, I’d almost bet the recalcitrant death penalty supporters in the group are probably busy trying to make sure torture is legitimized and codified.
geg6
Know hope, John. This is a good thing. And rather shocking, I must say. I wouldn’t have expected this from this bunch. Even the worst assholes sometimes see the light.
Cat Lady
The PBS series on the Supreme Court is fascinating. Earl Warren, shortly after he was appointed Chief Justice by Eisenhower, insisted that the Brown v. Board of Education holding that overturned Plessy v. Ferguson be unanimous so that there would be no dissent that could be used by petitioners in future appeals to the Court. It took months to get the last holdout but he had singular focus on that goal because of the potential for blowback, and he was playing the long game. The death penalty is going to end up being in the same judicial category as segregation, because it is unjust, and ultimately indefensible. This is my hope, still, for this country. Yes, I am an O-bot.
KG
@Cat Lady: I’m not sure that the Court’s will be the way to rid our system of capital punishment. Two Amendments state that a person may be deprived of life without due process of law. That presupposes that if some process would be sufficient. A constitutional amendment likely isn’t possible, but statutory law would do wonderfully, I think.
kay
@Cat Lady:
The NYTimes headline is “Group Gives up Death Penalty Work”, so I was relieved when I read further.
I just assume “death penalty work” is the work of advocating against capitol punishment, or defending individuals.
I thought, “jeez, they’re just giving up? How many of them?”
Steve V
@Cat Lady: If you found the story of Brown v. Board of Education interesting, I recommend you read “Simple Justice.” It describes the NAACP’s lengthy litigation program against Plessy and features two of the great characters of this country’s legal history, Warren and Thurgood Marshall. William Rehnquist even has a bit part.
Cat Lady
@kay:
This is how realignments happen.
Cat Lady
@Steve V:
The PBS series did a bit of a profile of Thurgood Marshall and Robert Carter who litigated on behalf of Brown. The focus was on Hugo Black however, and his evolution from a good ol’ Alabama KKK’er to the fiercest defender of civil rights the Court ever had. Fascinating, and hopeful! For all the firebaggers out there, if you need a reason to support Obama in your winter of pony-less despair, it’s Supreme Court appointments. That’s the whole game, right there. I highly recommend the series. The 40+ years of Southern obstructionist segregationist bullshit in Congress was ended, over and done. Hugo Black then said – “now people are going to die”. But we got Obama.
Cassidy
It doesn’t help that when people like me actually do see the other side and walk over to the anti-death penalty side, we’re treated like assholes. Way to win over people.
Cat Lady
@Cassidy:
Not me. Welcome, my son!
Xanthippas
I’m not sure you know what these guys do. In addition to drafting things like the Modal Penal Code (of which their work on the death penalty was a part) along with other codes, they’re responsible for the Restatements of Law that serve as the authoritative sources of black letter law in nearly all fields of law. It’s the stuff that law students everywhere read as the basis of their studies, most especially in their first-year courses. These guys are a bunch of legal academics and scholars, not advocates for the death penalty.
asiangrrlMN
@Cassidy: Me, neither (in response to Cat Lady’s statement). The more, the merrier, I say. Welcome.
Might I dare hope that the tide is turning on the death penalty? I might.
kay
@Cat Lady:
I don’t remember the model code, I’m sorry to say. It’s been completely subsumed by the actual code. I’m sure they align closely.
The only discussion I remember is on the rape cases, which was heated, followed by a lot of backtracking and apologizing, and eventual agreement on some basic principles.
I agree generally, though. It’s progress.
Cat Lady
@kay:
I believe in incrementalism in policy, then a good Court case that advances and codifies the practice. This is our country’s path. Gay marriage is on the same path as the death penalty, but with opposite outcomes. I’m waiting in great anticipation for the Boies-Olson brief in support of same sex marriage. Shit storm ahead!
Martin
But killing undesirable people makes me feel big. How do I get rid of this feeling that I am a small person, that I have power in the world?
asiangrrlMN
@Martin: Go on a shooting spree. If you are white and don’t cross state lines, you most likely will not get the death penalty for it (and yes, that’s completely pulled out of my ass).
Martin
@asiangrrlMN:
Being in CA, I think I’m safe on that count. Hell, I’ll probably get released after 180 days due to the prison budget.
And I define white. You know Bob from the Enzyte commercials? I look just like that guy.
Scruffy McSnufflepuss
Harry Blackmun was still the best anti-death penalty convert.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10343
I have to appreciate that Justice Powell converted, too, although it was too late to do any good. (Powell also repented of his vote in Bowers v. Hardwick, which set back gay rights about 15 years).
gopher2b
@geg6:
Like usual, most of you idiots have no idea what you are talking about.
kid bitzer
““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.””
in other words, we’ll have a few decades of saying, “sorry, tyrone, we all agree that killing you is unjust, but we’re going to kill you anyhow.”
i hope a lot of governors pull a ryan on this and just say, “forget it. no one else gets the chair on my watch.”
of course, that was illinois, which we all know is a soziulist state.
in texas, perry will say “no intellectual underpinnings? oh goody! i hate intellectuals anyhow. does this mean we can kill more quicker? bring em on!”
Ruckus
It will take a while but what the hell, in my lifetime there is a chance that we can join the human race and learn not to kill as a first response. Looks like 2010 may be a good year.
Sasha
@asiangrrlMN:
Not a statistic but a hypothetical, huh.
Comrade Kevin
@gopher2b:
Wow, you sure convinced me.
Comrade Kevin
I’m sure the innocent people who were executed along the way are happy to hear this.
Mike G
Since when have the creationist, Khmer Rouge Repigs respected intellectual underpinnings? The sight of “elitist, Ivy League” intellectuals rejecting the death penalty will make the Palinist mouth-breathers dig in even deeper.
What really gets me are the glibertarians who claim to want a strictly-limited government, yet they are keen to give the state the power to judicially kill people. As long as you don’t affect anyone’s property rights.
DonBelacquaDelPurgatorio
You are an asshole, that’s why you get treated like one.
And the royal “we”? Unbecoming.
But all of that said, as one asshole to the other, if you want to cast your vote on the side of anti-DP, then I tip my hat and say good for you. Being an asshole is one thing, but being on the right side of a question is another. Welcome aboard the asshole bandwagon.
DonBelacquaDelPurgatorio
@asiangrrlMN:
I spotted the blog stats the other week, in about 2008, 16k murders, about 38 executions, IIRC, and half of those were in Texas.
Executions now are just for show. There is no justifiable reason for them whatever at this point.
geg6
@Xanthippas:
I am quite well aware of what they do. I studied the model code back in my undergrad days when I was still in pre-law and aspired to a career as an attorney. I changed my mind about the career, mainly because I found that my aspirations in the field would lead to my having even larger student loan debt than I already had and no more in salary than I have today (I was most interested in being a public defender…yes, I was a crazy idealist). But regardless, I’m well aware of their work. The fact that their work led to the reinstatement of capital punishment, despite all the massive evidence of it being ineffective and racist, says it all for me. And the fact that they were even split about it at this point in time is even more damning. I called them assholes and I stand by it.
@gopher2b:
Wow, you are surely the greatest debater of all time. Way to smack me down! I’m truly awed by your brilliance and ashamed of my ignorance. Please accept my apologies.
gopher2b
@geg6:
The ALI is nothing more than a group of self appointed legal scholars that attempt to synthesize existing law (both federal and state) into a single source. It law by lowest common denominator.
The only people that use it are first year law students not smart enough to get what they need from cases (but smart enough to find out it exists) and lazy associates looking for a quick answer to a basic legal question.
The ALI’s positions are not binding on any institution and, most of the time, they are wrong or overly simplified.
Besides, all the ALI said about the Death Penalty is that the law across jurisdictions is so contradictory and inconsistent that its impossible to develop a single coherent outline of what the law means and says. Nothing more, nothing less.
But by all means, get all “shocked” by this “bunch” of “assholes.”
gopher2b
@geg6:
Best decision you ever made.
Paul in KY
Slag me if you will but I still think there are some vile crimes that the death penalty is the only fit punishment.
The problem, of course, is that we (society) seem to have a terrible time figuring out who really committed the crimes that (to me) merit the death penalty.
geg6
@gopher2b:
As I mentioned above, I don’t need them explained to me. I know who they are and what they do. And as former apologists and pushers of the death penalty who actually have influenced state and federal legislation, Supreme Court cases, and law schools all over the country, they aren’t exactly the lowest common denominator when it comes to getting their ideas enshrined in the country’s laws. And funnily enough, one of their ideas was that the death penalty was just dandy. Personally, I’m glad these idiots have changed their minds (even if it’s only half of them). It’s good to see that even the most arrogant of people (and, yes, many attorneys are supremely arrogant people) can admit to a mistake, for whatever reason they may have done it.
gopher2b
@geg6:
The ALI hasn’t influenced anything in over 40 years. Their early work was important because case law was scattered hither and yon in hard to obtain case books. Now we have westlaw and lexis so no one cares what they have to say.
If you honestly think the ALI has influenced a Supreme Court decision, then by all means cite to one. I will then demonstrate why you are wrong (preview: nothing they write is “their” idea; they are merely reporting what actual courts have already decided).
geg6
@gopher2b:
Too fucking easy.
gopher2b
@geg6:
OMG, all you did was cite the article. You are such a lightweight.
Leaving aside the fact that this case is nearly 40 years old, if you had actually read the case (you would have learned this in law school) you would have understood that the Supreme Court did not cite to the ALI’s MPC in support of the proposition that, in at least some circumstances, the death penalty is not unconstitutional. This was based entirely on a textual reading of the Constitution and prior case law. I’m assuming this means the Supreme Court didn’t need the ALI to justify the relative “dandiness” of death penalty.
Now the Supreme Court did cite to the MPC for the “groundbreaking” observation that a proceeding should be bifurcated into guilt and sentencing phases when certain facts are both prejudicial (as to guilt) and relevant (as to sentencing). WOW! (This, btw, is a protection for the defendant).
Finally, the Court also cited to the MPC in response to a statement (from 1949) that it was impossible to formulate the factors that could be considered when deciding whether the death penalty in a particular case is constitutional (like, for example, “at the time the murder was committed the defendant also committed another murder”). The ALI didn’t pull these “factors” out of thin air, the pulled them from existing case law — the same thing any Supreme Clerk would have done had the ALI not already done it.
Cassidy
@DonBelacquaDelPurgatorio: And it’s people like you that will influence me to consider voting for the pro-Dp guy, just so I can tell you that you helped kill an innocent person.
geg6
@gopher2b:
And you are a dickhead. When the ALI is directly cited by the justices, that makes them influential. It really doesn’t matter a fucking whit how ALI came up with its MPC. What matters is whether or not someone took it seriously enough to cite it. If they were just aggregators of information that others dug up, that doesn’t matter either. Someone in the Supreme Court thought their take on it was good enough to cite it. And, as any attorney knows, you can generally find citations to match just about any position you want to take. It is more than entirely possible and probable that ALI chose citations that matched up to what outcome they preferred. As all lawyers do. You really are a pedantic jerk. You think that by talking in legal jargon that you sound smarter than you really are. But even us dummies with lowly MEds understand how the world of legal argument works. If ALI is not in any way influential and does and did nothing more than what lowly legal clerks do, then please expound for me on why the hell Supreme Court justices, the NYT, and my pre-law professors seemed to cite them so much?
sparky
@geg6: well, there are a couple of reasons for that. most of what the ALI does is issue “Restatements”, which are considered useful statements of the law as it is, as to general propositions. so it is quite useful as a teaching tool. in that very rough sense that it is used in law teaching, it is a partial legal encyclopedia of sorts, but only in a very rough sense. no practicing lawyer would argue from a Restatement; the lawyer would argue from the cases that, perhaps, the lawyer found the Restatement citing. as to the SCt citing it, well, that doesn’t really mean anything one way or the other. the supreme court cites to all sorts of non-legally authoritative materials from time to time to buttress an argument. those citations do not imbue those sources with authority.
items like the model penal code are a bit different as to jurisdictions (states) that adopted them in whole or in part. in that case the underpinnings could be said to carry some interpretive weight.
what this decision does is, as the quote in the piece says, remove a portion of the argument for the death penalty from the area of legal theory (the deterrent argument (probably the most (only?) empirical claim in favor of the penalty) has long been discredited, but the penalty remains). now it is strictly a political question. since the political trends in the US still strongly favor the death penalty, i think it is a mistake to infer any shift in public sentiment or, for that matter, any change in death penalty practice from this ALI decision. if anything, given the frenzy of fear in this country and the apparent need to revert to a Puritan model of governance, i’d expect the death penalty to become more entrenched over time, but with a lovely veneer of “correct application” atop it, ala “health reform.”
gopher2b
@geg6:
Are you referring to “dandiness”
Kenneth Fair
This depends somewhat on the field. In trust litigation, for instance, citations to the Restatements of Trusts are commonplace, especially on points for which the courts of that particular state have not yet ruled.
It seems to me that the ALI’s decision has deeper effects than simply whether the Model Penal Code (or a Restatement) are cited to or by a court. The ALI (as well as NCCUSL) serve a purpose in standardizing legal principles across state lines. Their work influences not just court decisions, but also legislative drafting and broader debate about jurisprudence.
geg6
@Kenneth Fair:
Well, you said it much better than I was saying. I kept arguing based on the article in the Times, strictly from its point of view on the death penalty. But the idea that the MPC has no real life implications on the law is ridiculous. I know that it does and you stated very well why. It affects not only court decisions, but also legislation (especially in the states, which is where you hear it bandied about here where I live quite a bit) and debate among legal professionals and others. And that makes it very important and not just a tool for lazy law clerks. Which is why I think John is right that this is sort of a big deal.