Death penalty loses legitimacy as top lawyers distance themselves

By: Editorial Board

Lawyers think no problem has been invented that they can’t puzzle through, solve or argue their way out of.

So, there’s reason to pause when they throw up their hands and walk away from a fight. That’s what the nation’s pre-eminent group of legal scholars and practitioners has done with capital punishment. It says that problems associated with the death penalty are “intractable” — that the system is so broken that it no longer is willing to lend it legitimacy.

The American Law Institute has a significant stature in the legal profession, analogous to the National Academy of Sciences. It strives to improve, simplify and promote certainty within broad categories of law — such as contracts, remedies, property, trusts, torts, unfair competition, remedies and criminal law. Its work is painstaking in detail, glacial in pace and technical in nature.

Committees produce and revise drafts of copious model codes and restatements of the law, circulating them for comment and debate. Only those that survive the gauntlet of reviews are put to a vote of its general membership.

For nearly 50 years, the institute proposed what it considered to be the best legal framework for imposing the death penalty, standards that became part of its Model Penal Code.

But the organization has re-examined its position in light of actual experience. It commissioned a comprehensive study that sought to impartially weigh criticisms of how the death penalty functions in practice.

In late October, the membership voted to withdraw the Model Penal Code provision. The decision was based on what the members view as “intractable institutional obstacles to ensuring a minimally adequate system for administering capital punishment.”

These doubts should be familiar to citizens of Missouri and Illinois who have witnessed fundamental failures from close range.

Former Illinois Gov. George Ryan lost confidence in the system’s ability to prevent the executions of innocent people. He instituted a moratorium and then cleared out death row, pardoning four death row inmates and commuting the remaining death penalty sentences to life imprisonment.

Executions also are on hold in Missouri. Missouri uses a three-chemical “cocktail” that is supposed to anesthetize and paralyze the inmate before bringing about a massive heart attack, causing the condemned person’s death.

The state had been performing executions without fixed protocol. The chemicals had been administered by personnel with dubious medical credentials and who failed to keep accurate logs.

Now the courts are considering the constitutionality of Missouri’s efforts to remedy these problems.

The American Law Institute recruits the nation’s best, brightest and most accomplished lawyers, judges and scholars in the nation. Its members come from a wide ideological spectrum and take positions only by consensus.

They have not endorsed or opposed the abolition of capital punishment. But they have concluded that the framework that they proposed in 1962 “has not withstood the tests of time and experience.” They have decided that they no longer are willing to be complicit in how the death penalty is being administered.

An increasing number of Americans see the death penalty for what it is: a brutal, freakish system of punishment that is resistant to competent administration and that is dehumanizing to us all.

Now, even the sharpest lawyers are distancing themselves from the most severe punishment. They have concluded that it’s not worth trying to fix — or even to make an argument on its behalf. It cannot be fixed.