
The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.
The American Law Institute intended to remain neutral on capital punishment when it crafted the model penal code in 1962. The code contained, however, a template for considering conflicting constitutional values in death penalty cases that required due process of law based on objective criteria and individual consideration of the special facts and circumstances of each capital case.
The guided discretion construct was ignored by the states until 1972 when the United States Supreme Court invalidated all state death penalty laws for failing to provide due process of law in a nondiscriminatory manner that weighed the competing interests of even-handed administration of law with individual consideration of each capital case.
States attempted to fix the problem by adopting the guided discretion template of the MPC. In 1976 the Supreme Court approved resumption of capital punishment on the strength of the MPC endorsement.
As a result, the ALI gained first-hand experience with the only law beyond its expertise: the law of unintended consequences.
In October 2009, the ALI withdrew its support for the guided discretion template and a legal report evaluating its application over the years said it had not worked.
It’s now time to look at all other legal and administrative aspects of death penalty administration to determine whether the system is merely broken or intrinsically flawed beyond repair.
253 words
dv
November 17, 2009



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No less than their sensory counterparts, the waves of personal remembrance obey 
Like metaphorical truth, visible light rarely reveals its constituent parts so regularly and so predictably. Depart ever so modestly from the axis on which truth or light turns, and your eyes will no longer honor one focus. And if you should look instead at an object propelled through the sky, gravity's rainbow will no longer appear to you in closed form. It will rise — and fall — according to a trajectory that will never connect the beginning of truth with its end.
Pivotal events therefore mark the sections of our lives, slicing at particular points of time through the whole of the truth and leaving us no more enlightened than the objects we trace across our field of vision at speeds well below that of light. Catch them, and you will be rewarded momentarily by the mirage of control. Miss them altogether, and you will rue forever the path that both of you, protagonist and projectile, must follow.



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