The Death of the Death Penalty

The Death of the Death Penalty

The death penalty is dead. Killed not by judicial fiat or parliamentary maneuver or executive order but by the people. Juries comprised of citizens who swear they support the death penalty in principle have simply quit imposing it in practice.

There have been four executions in Kentucky since 1956. Two involved inmates who dropped their appeals. Scarcity can be a sign of selectivity but the rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity.

The death penalty record in Kentucky support two conclusions:

1) It no longer serves a law enforcement purpose;
2) It offends Kentucky’s evolving standard of decency.

The supreme court case that resulted in the upcoming public hearings on execution techniques did not rule that the death penalty is legal--only that its machinery must be tinkered, tuned and tended in public.

The U.S. Supreme Court case that reviewed lethal injection in Kentucky did not rule on the legality of the death penalty but only a particular method of execution based upon a particular limited record about a particular regulation that we now know was not properly adopted.

The Kentucky Supreme Court should next address capital punishment head on not to abolish it on its own authority but by ruling that the people already have, secure in the knowledge that life in prison without parole protects the public and punishes the criminal.

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The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.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

253 words
dv
November 17, 2009