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Ian McColgin
01-04-2010, 12:43 PM
From New York Times, Sidebar

Group Gives Up Death Penalty Work in Frustration

By ADAM LIPTAK
Published: January 4, 2010
WASHINGTON

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number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely.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

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 have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections.

Roger S. Clark, who teaches at 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.”

The framework the institute developed in 1962 was an effort to make the death penalty less arbitrary. It proposed limiting capital crimes to murder and narrowing the categories of people eligible for the punishment. Most important, it gave juries a framework to decide whom to put to death, asking them to balance aggravating factors against mitigating ones.

The move to combat arbitrariness without giving up sensitivity to individual circumstances is known as “guided discretion,” which sounds good until you notice that it is a phrase at war with itself.

The Supreme Court’s capital justice jurisprudence since 1976 has only complicated things. Justice Harry A. Blackmun conceded in 1987 that “there perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required.”

That was an understatement, Justice Antonin Scalia said in 1990. “To acknowledge that ‘there perhaps is an inherent tension,’*” he wrote, “is rather like saying that there was perhaps an inherent tension between the Allies and the Axis powers in World War II.”

Justice Scalia solved the problem by vowing never to throw out a death sentence on the ground that the sentencer’s discretion had been unconstitutionally restricted.

In 1994, Justice Blackmun came around to the view that “guided discretion” amounted to “irreconcilable constitutional commands.” But he drew a different conclusion than Justice Scalia had from the same premise, saying that “the death penalty cannot be administered in accord with our Constitution.” He said he would no longer “tinker with the machinery of death.” The institute came to essentially the same conclusion.

Some supporters of the death penalty said they welcomed the institute’s move. Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.”

Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated. But opponents of the death penalty said the institute’s move represents a turning point.

“It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said. “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970. “The death penalty was an abstract issue of little interest to me or my fellow students,” he said. But he remembered being impressed by the institute’s work. “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”

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.”

# # #

JimD
01-04-2010, 02:29 PM
What still seems obvious to me is that the person who commits murder feels absolutely as justified in his actions as the state that chooses to murder the murderer. So there is a moral equality between the individual murderer and the state that executes him. It is not an equality I personally wish to participate in, so I am glad that in Canada capital punishment falls under federal jurisdiction and not provincial, so we have no death penalty anywhere.

Tristan
01-04-2010, 05:05 PM
re the death penalty. I am quite the liberal in most respects . . . however, I worked in the prison system, as a licensed psychologist, in North Florida for four years. I interviewed a variety of criminals including murderers. Among the murderers there were many who murdered during robberies, drug deals, fights, basically somebody got killed because someone was afraid they'd get killed themselves. Some murdered for the "fun of it," some to get rid of witnesses during rapes, robberies, etc. In the overwhelming majority of the murders the murderer had previous convictions, often multiple previous convictions for violent crimes. Many of these guys were, in my opinion, way too dangerous to be released back into society. Many were quite dangerous, even in the prison community. I remember talking to one lifer who had threatened another inmate. He said, "Hell, I've got life plus ten, I've got nothing to lose." I interviewed other inmates who had killed basically because they didn't care a bit about the lives of other folks. They killed the way you or I might buy a can of soup or take the garbage out. It costs a LOT of money to keep these guys in prison. Many are too dangerous to be released. My view is to look at the past history of the murderer and, in the case of the very violent repeat offenders, put them to death.

Tristan
01-04-2010, 05:35 PM
What still seems obvious to me is that the person who commits murder feels absolutely as justified in his actions as the state that chooses to murder the murderer. So there is a moral equality between the individual murderer and the state that executes him. It is not an equality I personally wish to participate in, so I am glad that in Canada capital punishment falls under federal jurisdiction and not provincial, so we have no death penalty anywhere.

I would argue that, in many cases, the murderer "feels" very little. They are not concerned about justification or morality, they just act (or react). Is it a justification to murder a four year old you've just raped? Should one feel justified in murdering a 14 year old because you (a 34 year old) are bored and wanted something exciting to do?

johnw
01-04-2010, 07:16 PM
re the death penalty. I am quite the liberal in most respects . . . however, I worked in the prison system, as a licensed psychologist, in North Florida for four years. I interviewed a variety of criminals including murderers. Among the murderers there were many who murdered during robberies, drug deals, fights, basically somebody got killed because someone was afraid they'd get killed themselves. Some murdered for the "fun of it," some to get rid of witnesses during rapes, robberies, etc. In the overwhelming majority of the murders the murderer had previous convictions, often multiple previous convictions for violent crimes. Many of these guys were, in my opinion, way too dangerous to be released back into society. Many were quite dangerous, even in the prison community. I remember talking to one lifer who had threatened another inmate. He said, "Hell, I've got life plus ten, I've got nothing to lose." I interviewed other inmates who had killed basically because they didn't care a bit about the lives of other folks. They killed the way you or I might buy a can of soup or take the garbage out. It costs a LOT of money to keep these guys in prison. Many are too dangerous to be released. My view is to look at the past history of the murderer and, in the case of the very violent repeat offenders, put them to death.
My experience covering the police beat was that people do terrible things more because they are callused than because they had some compelling reason to. Because of the extensive appeals process, the death penalty is both more expensive and slower and less certain to be administered. In terms of deterrence, speed and certainty of punishment is as important as severity.

The problem I see is the one you mention, where people serving life without parole can be given no greater penalty. I can see reason to have a death penalty for a murder committed under those circumstances, so that those serving such a sentence would still have something to lose.

John Smith
01-04-2010, 07:21 PM
I don't have enough faith in juries to sentence anyone to death.

If I did, I'd be more inclined to not only support the death penalty, but execute the convicted in the same method they executed their victims.

Way too many innocent people, however, get convicted.

oznabrag
01-04-2010, 07:26 PM
...
The problem I see is the one you mention, where people serving life without parole can be given no greater penalty. I can see reason to have a death penalty for a murder committed under those circumstances, so that those serving such a sentence would still have something to lose.

So let's see if I've got this straight.

Your idea is that you can't be sentenced to death from the outside but, if you commit a rape, murder, or aggravated assault while you're in prison, you can get the death penalty?

If that's what you mean, I think the idea has some merit. It seems like it would likely be difficult to implement, but I have no way of knowing. It seems as though it would make our prisons safer.

hokiefan
01-04-2010, 07:29 PM
I don't have enough faith in juries to sentence anyone to death.

If I did, I'd be more inclined to not only support the death penalty, but execute the convicted in the same method they executed their victims.

Way too many innocent people, however, get convicted.

Having served on three juries I agree with this statement 100%. Two were civil, one criminal (murder). I believe we made the right decisions, but there were some real winners:eek: on all three juries. I wouldn't put my life in their hands. Conceptually I believe in the death penalty, but I'm not sure about the reality of the situation.

Cheers,

Bobby

Bob Cleek
01-04-2010, 08:14 PM
"A study commissioned by the institute said that decades of experience have proved that the system cannot reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment is plagued by racial disparities; is enormously expensive even as many defense lawyers are underpaid and some are incompetent; risks executing innocent people; and is undermined by the politics that come with judicial elections."

Yes, everybody who's had any contact with "the system" has recognized this for many years.

What's really scarey, though, is that the statement is equally true about the entire criminal justice system. It's just that capital sentences come with automatic appellate reviews and there's often a bunch of sympathetic folks out there who will embark on a tireless crusade to prevent a convict's unjust execution. Their efforts have demonstrated how often justice is NOT done in capital cases. Just imagine what it's like to be an eighteen year old ghetto kid sent to prison for life for a liquor store hold-up you didn't do. ("They all look alike to me, but I'm SURE he was the one!") Good luck getting anybody to take a second look at your trial transcript!

johnw
01-04-2010, 08:34 PM
So let's see if I've got this straight.

Your idea is that you can't be sentenced to death from the outside but, if you commit a rape, murder, or aggravated assault while you're in prison, you can get the death penalty?

If that's what you mean, I think the idea has some merit. It seems like it would likely be difficult to implement, but I have no way of knowing. It seems as though it would make our prisons safer.
I don't see why it should be difficult to implement. Current capitol murder laws have harder-to-implement qualifications than that. And murders done in prison are often, I believe, easier to solve than those on the outside, where the universe of suspects can be quite large.

I suppose in practical terms, though, solitary confinement for life would be easier to implement.

The other problems I have with the death penalty is that you can't let them go if you find the jury wrongly convicted them (a problem Rick Perry is even now trying to sweep under the rug) and that who's going to die has less to do with the crime than with the race of the victim and the criminal.

oznabrag
01-04-2010, 08:43 PM
So that is what you meant!

It is a very interesting idea, John.

The difficulties of implementation may revolve around setting up a separate justice system. Or not?

A jury of one's peers may look quite different in the joint! ;)

Would it look more like a military tribunal? Would the members of that board be, simply, the warden and a few of his subordinates?

This idea may actually go a long way toward reforming our prison system, which seems to need reforming.

Just so you know, my Girl has been out of town since before Christmas, and has just come. Then she turned around and took her kids over to their Dad's house, and she will be back shortly. I'd like to continue this discussion, but may be otherwise occupied in the immediate future.

I hear the car door now!

Sayonara! :D

Tristan
01-04-2010, 09:09 PM
The idea of an innocent person sentenced to death does scare me. None of the inmates I dealt with over four years said they were innocent but it does happen, partly via "don't worry about guilt or innocence, just get a conviction" prosecution. As far as murderers, I was always impressed by the absolute cold-blooded detachment of many of these guys. Some struck me as being very, very dangerous. A couple times I suddenly wondered what in hell I was doing alone in a room with them. I kind of liked the old timers. Several had been on death row for quite a few years. One had been in my high school English class and recognized my name when I went to work at his prison. He'd been on death row with the original "Cool Hand Luke." An interestng, intelligent guy but a areal sociopath. He had been released on parole twice and violated twice. It It does pay to be on one's toes in prisons. A psychologist my wife knew was strangled to death while interviewing an inmate here in Naples. I was never strangled to death but I had a few cold chills run up my back when talking to a few of these guys and I hope they are NEVER released.

JimD
01-05-2010, 12:42 AM
... Is it a justification to murder a four year old you've just raped? Should one feel justified in murdering a 14 year old because you (a 34 year old) are bored and wanted something exciting to do?

Is it not obvious that when someone commits murder they don't do so because of what I, you, or any one else feels is justified? Its what the murderer feels is justified in his twisted mind. That's why they do it. If you feel that the correct response to these sick heartless people is more cold blooded murder, namely execution, that's your choice.

brad9798
01-05-2010, 01:08 AM
I don't have enough faith in juries to sentence anyone to death.

If I did, I'd be more inclined to not only support the death penalty, but execute the convicted in the same method they executed their victims.

Way too many innocent people, however, get convicted.

My thoughts, too!

:) :(

johnw
01-05-2010, 02:19 PM
So that is what you meant!

It is a very interesting idea, John.

The difficulties of implementation may revolve around setting up a separate justice system. Or not?

A jury of one's peers may look quite different in the joint! ;)

Would it look more like a military tribunal? Would the members of that board be, simply, the warden and a few of his subordinates?

This idea may actually go a long way toward reforming our prison system, which seems to need reforming.

Just so you know, my Girl has been out of town since before Christmas, and has just come. Then she turned around and took her kids over to their Dad's house, and she will be back shortly. I'd like to continue this discussion, but may be otherwise occupied in the immediate future.

I hear the car door now!

Sayonara! :D

It would be an ordinary trial with an ordinary judge and jury. Which means some of the problems I've noted before with the death penalty would remain. As I said before, it would be easier to implement something short of the death penalty, like life in solitary. The idea is to provide some price one could still pay while serving life without parole.

Tristan
01-05-2010, 05:25 PM
It would be an ordinary trial with an ordinary judge and jury. Which means some of the problems I've noted before with the death penalty would remain. As I said before, it would be easier to implement something short of the death penalty, like life in solitary. The idea is to provide some price one could still pay while serving life without parole.

I guess my thought is not to "punish" them but rather to make sure they are removed as a danger to society . Death provides absolute, permanent, removal. Unfortunately it seems to cost a great deal of money and there is always the danger of executing an innocent person (which doesn't seem to bother "Good Hair Perry").

johnw
01-05-2010, 05:39 PM
Punishment is a tricky concept, and in the sense of revenge it isn't justice. It should mean a way to deter bad behavior, and show the law-abiding that those who break the law pay a price, which makes them feel that they were right all along to obey the law.

As for Perry, he puts me in mind of an earlier case:

http://en.wikipedia.org/wiki/Leo_Frank

The death penalty, unfortunately, seems to inflame passions in a way other sentences don't, which is why it's such a political football.

Rich Jones
01-05-2010, 06:07 PM
Death penalty? No way. Throw them in a windowless hole and let them suffer on earth. It'll give them a taste of Hell. My, I'm in a nasty mood tonight...

oznabrag
01-05-2010, 06:32 PM
Punishment is a tricky concept, and in the sense of revenge it isn't justice. It should mean a way to deter bad behavior, and show the law-abiding that those who break the law pay a price, which makes them feel that they were right all along to obey the law.

As for Perry, he puts me in mind of an earlier case:

http://en.wikipedia.org/wiki/Leo_Frank


Perry is a miserable sack of human garbage.

As to Frank, his lynching remains an inexcusable stain on the integrity of the justice system of the US in general, and of Georgia in particular.

My great grandfather, Berry Benson, was outraged by this murder-by-mob, and took it upon himself to investigate the murder of Mary Phagan. He concluded that Frank was innocent and published his findings in the form of a letter to the editor of the Atlanta paper.

You may find his thoughts on that crime as re-published in the New York Times here: http://query.nytimes.com/gst/abstract.html?res=9C05E1D7153FE233A25754C2A9649D94 6596D6CF

The article will appear as a downloadable PDF.

Berry's behavior in the face of this outrage remains a point of pride in my family.

Peter Malcolm Jardine
01-05-2010, 06:33 PM
I guess my thought is not to "punish" them but rather to make sure they are removed as a danger to society . Death provides absolute, permanent, removal. Unfortunately it seems to cost a great deal of money and there is always the danger of executing an innocent person (which doesn't seem to bother "Good Hair Perry").


This is the second time you have mentioned 'money' when it comes to incarcerated citizens. If it is a lot of money to keep dangerous people incarcerated, and capital punishment solves that problem, perhaps we could apply that same logic to severely disabled people, or the poor. After all, society supports them as well at great expense, and they serve no useful purpose...

oznabrag
01-05-2010, 06:52 PM
It would be an ordinary trial with an ordinary judge and jury. Which means some of the problems I've noted before with the death penalty would remain. As I said before, it would be easier to implement something short of the death penalty, like life in solitary. The idea is to provide some price one could still pay while serving life without parole.

The following is PURE hypothethesis!

I would rather see the system internal to the prisons.

The idea, as I see it, would be that "OK, you were unable to behave yourself on the outside, so now you're in here. If you behave yourself for the term of your sentence, we'll turn you loose. While you're here, you will become a part of another society. If you commit a crime against one of your fellow inmates, you will be tried by a jury of your peers, just like outside. If convicted, you'll be handed sentences ranging from extra laundry duty to death."

The problem I see with trying these cases in the regular courts is that they are already overloaded. The problems with creating an 'internal' system are probably overwhelming, but it could happen.

The jury of their peers would be key. A program that involved retired judges might be useful. Those guys have seen it all, and would be less likely to be hoodwinked by any prisoner politics.

I don't know, but the idea is very intriguing, and refreshing.

Thoughts?

hokiefan
01-05-2010, 07:20 PM
The following is PURE hypothethesis!

I would rather see the system internal to the prisons.

The idea, as I see it, would be that "OK, you were unable to behave yourself on the outside, so now you're in here. If you behave yourself for the term of your sentence, we'll turn you loose. While you're here, you will become a part of another society. If you commit a crime against one of your fellow inmates, you will be tried by a jury of your peers, just like outside. If convicted, you'll be handed sentences ranging from extra laundry duty to death."

The problem I see with trying these cases in the regular courts is that they are already overloaded. The problems with creating an 'internal' system are probably overwhelming, but it could happen.

The jury of their peers would be key. A program that involved retired judges might be useful. Those guys have seen it all, and would be less likely to be hoodwinked by any prisoner politics.

I don't know, but the idea is very intriguing, and refreshing.

Thoughts?

Regular courts are overloaded. But an inmate that commits a crime inside is already charged and tried through the existing justice system.

Cheers,

Bobby

johnw
01-05-2010, 07:27 PM
The following is PURE hypothethesis!

I would rather see the system internal to the prisons.

The idea, as I see it, would be that "OK, you were unable to behave yourself on the outside, so now you're in here. If you behave yourself for the term of your sentence, we'll turn you loose. While you're here, you will become a part of another society. If you commit a crime against one of your fellow inmates, you will be tried by a jury of your peers, just like outside. If convicted, you'll be handed sentences ranging from extra laundry duty to death."

The problem I see with trying these cases in the regular courts is that they are already overloaded. The problems with creating an 'internal' system are probably overwhelming, but it could happen.

The jury of their peers would be key. A program that involved retired judges might be useful. Those guys have seen it all, and would be less likely to be hoodwinked by any prisoner politics.

I don't know, but the idea is very intriguing, and refreshing.

Thoughts?

The way our prisons work, I think intimidation of jurors could be a problem. If they kill a guard, they get a regular trial. Why not a regular trial for killing an inmate?

As for the courts being overloaded, the quickest way to reduce the crime rate is make more stuff legal.

Of course, that's about as likely to happen as science textbooks being made lighter with anti-gravity devices.

oznabrag
01-05-2010, 07:34 PM
Of course they have, Bobby. You may have missed that JohnW proposed some sort of system for dealing with inter-inmate crimes?

JimD
01-05-2010, 07:48 PM
... my thought is not to "punish" them but rather to make sure they are removed as a danger to society...

On that we agree. Why do you suppose so many people think a justice system should be about punishment? Do these people think psychopaths choose to be psychopaths?

Tristan
01-06-2010, 08:40 AM
This is the second time you have mentioned 'money' when it comes to incarcerated citizens. If it is a lot of money to keep dangerous people incarcerated, and capital punishment solves that problem, perhaps we could apply that same logic to severely disabled people, or the poor. After all, society supports them as well at great expense, and they serve no useful purpose...

You misread. It costs about as much to keep them incarcerated as it does to execute them, expensive in either case. Has nothing to do with saving money. I am NOT for your proposition of executing severely disabled people, it's your idea, not mine.

johnw
01-06-2010, 04:19 PM
So often, irrefutable is in the eyes of the beholder.

oznabrag
01-06-2010, 05:22 PM
The justice system should be about exterminating wrong doer's.
And executiong only cost's more because the legal folks pass a lot of money around between themselves. In the end, all that has never turned a Not-Gulity guy away.
DNA on the other hand, has freed the not-guilty.

Again, my formula is the one we should use.
Irrefutable phisical and Forensice evidence connecting the Perp to the Victim, and its automatically a Death sentence.

Because you hate America so much, you really should consider a move to Saudi Arabia. They execute people left and right for little to no reason at all, so I think you'll be happy there.

Tristan
01-06-2010, 05:35 PM
The mandate for Florida Prisons is "Care and Custody." Problem is too many really dangerous inmates are released from custody and go on to re-offend. How many times to you read about a murder in which the murderer "was released from prison only - - - ago" (you fill in the weeks, months, etc. I don't know what the solution is short of hiring better people to conduct parole reviews, much better follow-ups of released inmates, and making sure those with a history of multiple violent offenses are never released. As for making mistakes, that's probably fairly rare when the accused has a record of 38 arrests including arrests for armed robbery, rape, assault with a deadly weapon, manslaughter, murder 2, etc. I am always amazed that there are so many individuals with records like this who continue to be released back into society. In the lore of justice in Texas, there are some people that need to be killed.

johnw
01-06-2010, 06:03 PM
Of course, one problem with the death penalty is that once it has been used, it's tough for those who sent the wrong man to his death to admit they did wrong. This caused the prosecutor in the Leo Frank case to let the man who actually did the killing go. Take a look at the link Oz provided. Mr. Benson wrote that in 1914. The miscarriage of justice he pointed out wasn't admitted until about 80 years after Frank's death, and about two decades after the man who actually did the killing died in old age.

Repeat offenders being let out is a separate issue. The solution is don't let them out.

Tristan
01-06-2010, 06:08 PM
Repeat offenders being let out is a separate issue. The solution is don't let them out.

Can't NOT let them out in many instances. Rule of law.

johnw
01-06-2010, 07:37 PM
Many states have a three-strikes law to deal with just these people.

oznabrag
01-06-2010, 08:43 PM
... In the lore of justice in Texas, there are some people that need to be killed.

Not to make light of a serious discussion, but what you're referring to is the old "Yer Honor, he jus' needed killing" defense. :o

johnw
01-06-2010, 08:47 PM
Only in Texas did I hear the term 'misdemeanor murder.'

JimD
01-06-2010, 08:50 PM
Irrefutable phisical and Forensice evidence connecting the Perp to the Victim, and its automatically a Death sentence.


I think bad spullers shood be exequted.