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.