The Council of the American Law Institute (ALI) recent­ly vot­ed to with­draw a sec­tion of its Model Penal Code con­cerned with cap­i­tal pun­ish­ment because of the ​“cur­rent intractable insti­tu­tion­al and struc­tur­al obsta­cles to ensur­ing a min­i­mal­ly ade­quate sys­tem for admin­is­ter­ing cap­i­tal pun­ish­ment.” The Council based its deci­sion on a study it com­mis­sioned to look into the prac­tice of the death penal­ty since the rec­om­men­da­tions were made in the Model Penal Code. The rec­om­men­da­tions for how to make the death penal­ty less arbi­trary had been adopt­ed in 1962 and were cit­ed by the U.S. Supreme Court in its 1976 opin­ion allow­ing a reformed death penal­ty to be rein­stat­ed. Section §210.6 of the Code defines cas­es appro­pri­ate for cap­i­tal pun­ish­ment, aggra­vat­ing and mit­i­gat­ing cir­cum­stances, and spe­cial sen­tenc­ing pro­ce­dures, and was intend­ed to meet sig­nif­i­cant con­cerns regard­ing the prac­tice. This move essen­tial­ly with­draws ALI from any attempt to fash­ion an accept­able death penal­ty because the sys­tem has proven to be unworkable.

The study request­ed by ALI was pre­pared by Carol and Jordan Steiker, and it concluded:

The fore­go­ing review of the unsuc­cess­ful efforts to con­sti­tu­tion­al­ly reg­u­late the
death penal­ty, the dif­fi­cul­ties that con­tin­ue to under­mine its admin­is­tra­tion, and the
struc­tur­al and insti­tu­tion­al obsta­cles to cur­ing those ills forms the basis of our
rec­om­men­da­tion to the Institute. The long­stand­ing recog­ni­tion of these under­ly­ing
defects in the cap­i­tal jus­tice process, the inabil­i­ty of exten­sive con­sti­tu­tion­al reg­u­la­tion to
redress those defects, and the immense struc­tur­al bar­ri­ers to mean­ing­ful improve­ment all
coun­sel strong­ly against the Institute’s under­tak­ing a law reform project on cap­i­tal
pun­ish­ment, either in the form of a new draft of § 210.6 or a more exten­sive set of
pro­pos­als. Rather, these con­di­tions strong­ly sug­gest that the Institute rec­og­nize that the
pre­con­di­tions for an ade­quate­ly admin­is­tered regime of cap­i­tal pun­ish­ment do not
cur­rent­ly exist and can­not rea­son­ably be expect­ed to be achieved.

The Council to the Membership of ALI vot­ed against tak­ing a stance on cap­i­tal pun­ish­ment, but also vot­ed against under­tak­ing a project to revise or replace sec­tion 210.6, while vot­ing in favor of with­draw­ing the death penal­ty sec­tion from the Model Penal Code.

According to the report sub­mit­ted by the Council to the Members of the ALI, ​“Unless we are con­fi­dent we can rec­om­mend pro­ce­dures that would meet the most impor­tant of the con­cerns, the Institute should not play a fur­ther role in legit­i­mat­ing cap­i­tal pun­ish­ment, no mat­ter how unin­ten­tion­al­ly, by retain­ing the sec­tion in the Model Penal Code.”

(Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty, April 15, 2009 (con­tains the Steiker study); Annual Meeting, May 19, 2009; final Council vote, Oct. 23, 2009; cor­re­spon­dence from Eric Freedman). To see cur­rent death penal­ty statutes by state, see Crimes Punishable by the Death Penalty. See also Law Review and Journal Articles.

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