A New Saint

Cathedral of the Assumption, Louisville

Most Rev. Joseph E. Kurtz D.D. Archbishop of Louisville celebrates with the Little Sisters of the Poor on the occassion of the canonization of their foundress Jeanne Jugan as a saint, November 22, 2009.

FLAWED

A Bad Design

Missing Pieces

The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.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.

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November 17, 2009

Collision Course

Collision Course

The death penalty has put the constitution on a collision course with itself.

The path to collision was cut and cleared in 1976 when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion’ template proposed by the Model Penal Code (MPC). The ‘guided discretion’ approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.

Rhetoricians have a name for rubrics like ‘guided discretion’: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).

The precise place where justice fits between ‘guided’ and ‘discretion’ is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding then reaching the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.

As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society’s search for justice, competing constitutional values get in the way of one another and, like Virgil’s army, crowd the field so totally that none has room to do its work.

The sponsor of the MPC, The American Law Institute (ALI), has now withdrawn the guided discretion template and its legal consultants Professors Carol S. Steiker, Harvard Law School and Jordan M. Steiker, University of Texas Law School, have declared the ‘guided discretion experiment’ unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model — the template is merely a mirror for what is required by the constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.

As courts grapple with the balance between the two, justice in death penalty cases is becoming to the constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.

Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can’t uphold it because the applicable legal standards collide with each other.

Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.