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Report of the Council to the Membership of the American Law Institute on the Matter of the Death Penalty

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Report of the Council to the Membership of the American Law Institute on the Matter of the Death Penalty Submitted by the Council to the Members of The American Law Institute for Consideration at the Eighty-Sixth Annual Meeting on May 19, 2009 Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty (April 15, 2009) The Executive Office The American Law Institute 4025 Chestnut Street Philadelphia, PA 19104-3099 Telephone: (215) 243-1600 • Fax: (215 243-1636 Email: [email protected] • Website: http://www.ali.org The American Law Institute Michael Traynor, Chair of the Council and President Emeritus Roberta Cooper Ramo, President Allen D. Black, 1st Vice President Douglas Laycock, 2nd Vice President Bennett Boskey, Treasurer Susan Frelich Appleton, Secretary Lance Liebman, Director Elena A. Cappella, Deputy Director COUNCIL Kenneth S. Abraham, University of Virginia School of Law, Charlottesville, VA Shirley S. Abrahamson, Supreme Court of Wisconsin, Madison, WI Philip S. Anderson, Williams & Anderson, Little Rock, AR Susan Frelich Appleton, Washington University School of Law, St. Louis, MO Kim J. Askew, K&L Gates, Dallas, TX José I. Astigarraga, Astigarraga Davis, Miami, FL Sheila L. Birnbaum, Skadden, Arps, Slate, Meagher & Flom, New York, NY Allen D. Black, Fine, Kaplan & Black, Philadelphia, PA Bennett Boskey, Washington, DC Amelia H. Boss, Drexel University Earle Mack School of Law, Philadelphia, PA Michael Boudin, U.S. Court of Appeals, First Circuit, Boston, MA William M. Burke, Sheppard, Mullin, Richter & Hampton, Costa Mesa, CA Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, San Francisco, CA Gerhard Casper, Stanford University, Stanford, CA Edward H. Cooper, University of Michigan Law School, Ann Arbor, MI N. Lee Cooper, Maynard, Cooper & Gale, Birmingham, AL George H. T. Dudley, Dudley, Topper and Feuerzeig, St. Thomas, U.S. VI Christine M. Durham, Supreme Court of Utah, Salt Lake City, UT Kenneth C. Frazier, Merck & Co., Inc., Whitehouse Station, NJ George Clemon Freeman, Jr., Hunton & Williams, Richmond, VA Paul L. Friedman, U.S. District Court, District of Columbia, Washington, DC Conrad K. Harper, Simpson Thacher & Bartlett, New York, NY Geoffrey C. Hazard, Jr.*, University of California, Hastings College of the Law, San Francisco, CA; University of Pennsylvania Law School, Philadelphia, PA D. Brock Hornby, U.S. District Court, District of Maine, Portland, ME William C. Hubbard, Nelson Mullins Riley & Scarborough, Columbia, SC Mary Kay Kane, University of California, Hastings College of the Law, San Francisco, CA Herma Hill Kay, University of California at Berkeley School of Law, Berkeley, CA Carolyn Dineen King, U.S. Court of Appeals, Fifth Circuit, Houston, TX Carolyn B. Lamm, White & Case, Washington, DC Douglas Laycock, University of Michigan Law School, Ann Arbor, MI Pierre N. Leval, U.S. Court of Appeals, Second Circuit, New York, NY David F. Levi, Duke University School of Law, Durham, NC Martin Lipton, Wachtell, Lipton, Rosen & Katz, New York, NY *Director Emeritus ii Myles V. Lynk, Arizona State University, Sandra Day O’Connor College of Law, Tempe, AZ Margaret H. Marshall, Supreme Judicial Court of Massachusetts, Boston, MA John J. McKetta, III, Graves, Dougherty, Hearon & Moody, Austin, TX Robert H. Mundheim, Shearman & Sterling, New York, NY Kathryn A. Oberly, District of Columbia Court of Appeals, Washington, DC Harvey S. Perlman, University of Nebraska-Lincoln, Lincoln, NE Ellen Ash Peters, Supreme Court of Connecticut (retired), Hartford, CT Louis H. Pollak, U.S. District Court, Eastern District of Pennsylvania, Philadelphia, PA Roberta Cooper Ramo, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM Lee H. Rosenthal, U.S. District Court, Southern District of Texas, Houston, TX Mary M. Schroeder, U.S. Court of Appeals, Ninth Circuit, Phoenix, AZ Wm. Reece Smith, Jr., Carlton Fields, Tampa, FL Jane Stapleton, Australian National University College of Law, Canberra, Australia; University of Texas School of Law, Austin, TX; University of Oxford, England Robert A. Stein, University of Minnesota Law School, Minneapolis, MN Larry S. Stewart, Stewart Tilghman Fox & Bianchi, Miami, FL Michael Traynor, Berkeley, CA Bill Wagner, Wagner, Vaughan & McLaughlin, Tampa, FL Patricia M. Wald, Washington, DC William H. Webster, Milbank, Tweed, Hadley & McCloy, Washington, DC Herbert P. Wilkins, Boston College Law School, Newton, MA Diane P. Wood, U.S. Court of Appeals, Seventh Circuit, Chicago, IL EMERITUS COUNCIL MEMBERS Hugh Calkins, Initiatives in Urban Education Foundation, Cleveland Heights, OH William T. Coleman, Jr., O’Melveny & Myers, Washington, DC Roger C. Cramton, Cornell Law School, Ithaca, NY William H. Erickson, Englewood, CO Vester T. Hughes, Jr., K&L Gates, Dallas, TX Nicholas deB. Katzenbach, Princeton, NJ Betsy Levin, Washington, DC Hans A. Linde, Salem, OR Robert MacCrate, Sullivan & Cromwell, New York, NY Vincent L. McKusick, Pierce Atwood, Portland, ME Roswell B. Perkins**, Debevoise & Plimpton, New York, NY Lawrence E. Walsh, Crowe & Dunlevy, Oklahoma City, OK George Whittenburg, Whittenburg Whittenburg Schachter & Harris, Amarillo, TX James H. Wilson, Jr., Sutherland, Atlanta, GA **President Emeritus and Chair of the Council Emeritus iii CONTENTS Report of the Council to the Membership of The American Law Institute on the Matter of the Death Penalty I. Introduction and Proposed Motion – page 1 II. The Current Model Penal Code – page 1 III. Why the Subject Is Before Us – page 2 IV. Decisions and Recommendations of the Council – page 3 V. Reasons for the Council’s Decisions and Recommendations – page 4 VI. Reasons for Concern about Whether Death-Penalty Systems in the United States Can Be Made Fair – page 5 VII. Summary – page 6 Annexes – page 7 Annex A – § 210.6, Model Penal Code Annex B – Report to the ALI Concerning Capital Punishment (November 2008) Annex C – Status Report on Capital Punishment (April 2008) iv Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty (April 15, 2009) I. Introduction and Proposed Motion On Tuesday afternoon, May 19, the ALI members attending the 2009 Annual Meeting will be asked to consider and approve the following motion with regard to the death pe- nalty: MOTION: That the Institute withdraws § 210.6 of the Model Penal Code. The motion will be presented on behalf of the Council, which approved the same motion at its December 2008 meeting. In order to be the position of the Institute, the approval of a majority of the ALI members present when it is put to a vote at the Annual Meeting is required. The Council makes one further recommendation: If a motion to endorse or oppose the abolition of capital punishment is presented for a vote at the 2009 Annual Meeting, the Council recommends that the members present vote against the motion. To assist the members in preparing for the consideration of this matter at the 2009 An- nual Meeting, the following report is being distributed in advance to the entire member- ship. The report provides important background information, including the history of the 1962 Model Penal Code’s approach to the death penalty, a recitation of why the matter is before us in 2009, and a review of the process in which the Institute has been engaged over the past two years to arrive at this point. In Section V, we discuss some of the con- siderations and reasons for the Council’s recommendations and decisions, including its decision not to undertake a project to revise or replace § 210.6. Section VI outlines the major concerns regarding the state of the death-penalty systems in the United States to- day, as set forth more fully in a paper prepared by Professor Carol Steiker and Professor Jordan Steiker at the request of ALI Director Lance Liebman. The paper is summarized in and also annexed to this report for information and not for approval. II. The Current Model Penal Code The Model Penal Code, recommended by the American Law Institute in 1962, expresses no view on whether capital punishment should be an available sentencing option. De- spite the views of the Code’s Chief Reporter (and later ALI Director) Herbert Wechsler, the other Reporters, and most of the Advisers, who favored excluding the death penalty as a sanction available in the United States, the minutes of the March 1959 Council meet- ing report this conclusion: “that it is undesirable for the Institute to take a position on … the abolition of capital punishment on the ground that this was a political question on which the opinion of either the Council or the Institute could be of little help in settlement of the matter.” In presenting the Proposed Official Draft of the MPC at the 1962 Annual Meeting, one of the Reporters, Professor Louis Schwartz of the University of Pennsylvania, said: The Institute went through a great struggle over whether to approve or disapprove the death penalty. We finally took the course of providing the most reasonable standards and procedures for application of the death penalty for use by those ju- risdictions which chose to retain it. Therefore we have bracketed the references to the death penalty, to show the contingent character of the Institute’s approval of the capital punishment provisions. The main provision of the Model Penal Code concerning capital punishment, § 210.6 (re- produced in full in Annex A), defines cases appropriate for capital punishment as fol- lows: only murder, then only if there are “aggravating circumstances,” and even then, not if “substantial mitigating circumstances call for leniency” or if the evidence at trial “does not foreclose all doubt respecting … guilt.” The section also proscribes the death sentence for those under age 18 at the time of the murder and for those whose “physical or mental condition calls for leniency.” Section 210.6 then mandates a special sentencing procedure in capital cases and allocates sentencing authority between judge and jury. Specifically, the section lays out two formulations from which states adopting the MPC would choose.
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