Legal Commentary

In the aftermath of Ohio's latest execution (read Ian Urbina's reporting in the NYTimes; this one was the first to be done with a single shot of a powerful narcotic ), I was cheered to read my colleague (and teacher) Frank Zimring's column in yesterday's National Law Journal, noting the decision by the American Law Institute earlier this fall, to withdraw it's much cited standards for capital sentencing.  Zimring, who longed championed the cause of repealing these provisions, points to an irony that should haunt all of us who purport to advise governments on matters of law and human rights.  The standards, captured in Section 210.6 of the Model Penal Code, were a compromise produced by reporters very much opposed to the death penalty, but drafted by the late Herbert Wechsler (who as Zimring notes, was no friend of capital punishment)  because the code was intended as a comprehensive document for state criminal law reform, and most states continued to have the death penalty.  Yet when the states began to reconstruct capital statutes in the aftermath of Furman v. Georgia (1972), many readily adopted the MPC provision, with its apparent structures to control discretion, making this least cherished artifact of the great drafter, one of the most widely adopted "reforms" in the MPC. 

Substantively, the section's weaknesses, diagnosed by Zimring and others as anchored in the overbroad categories included in the aggravating factors, overwhelmed any good it might have done in limiting the power of either prosecutors or jurors.  In the subsequent decades, the states have frequently cluttered the relatively lean list of MPC factors, with dozens of populist provisions designed to "honor" certain categories of victims.  The ALI's decision may be little celebrated in the media, nor noted by voters, but it is one step toward stripping the death penalty of the pretense it retains of legality.  The eventual abolition of capital punishment in this country, will come, I suspect, not when Americans are convinced it is morally wrong, or empirically unsound, but when they can no longer recognize it as law.  That day is perhaps not soon, but closer.