Truth springs up from the ground” – Psalm 85

For the last twenty years I’ve been watching at close range the bizarre and zany way the death penalty comes down on some and spares others. Theory about how the death penalty is supposed to be applied – who deserves to die and who should be imprisoned instead – is one thing; what happens on the ground, in practice, is quite another.

So, imagine my joy upon hearing that the abstract theory folks up in the tower – the American Law Institute consisting of 4,000 judges, lawyers, and law professors – have disavowed their own 1962 Model Penal Code.

What the ALI set out to do in the Model Code – or so they thought – was to provide an even-handed, useable set of criteria for juries to follow in capital cases. It was the intellectual framework that lulled us into thinking that we had a reliable process, that gave us – or, at least, many among us – hope that we could have systematic, fair, reasonably predictable guidelines to help juries decide when their fellow citizens deserved to die.

Late last year, the ALI admitted that their Model Code has failed.

This is huge, a tectonic shift. It was the ALI’s model, issued in 1962, that provided the intellectual framework which the Supreme Court used to reinstitute the death penalty in 1976 in Gregg v. Georgia. They all thought, then, that there was a balancing act courts and juries could follow, a balancing act that would correct the wild arbitrariness in the application of the death penalty and the way it came down so disproportionately on poor people and racial minorities.

But after 30 years of trying to make the death penalty work, the ALI, like Justice Harry Blackmun in 1994, decided to chuck the whole thing, calling it “irretrievably broken”. They cited the large number of innocent people wrongly sentenced to death and the continuing extreme arbitrariness in its application.

Consider: Two people can commit almost identical murders; one gets death and the other doesn’t. This means there’s no systematic way to apply the guidelines, and so local culture and prejudices play a huge role in determining who “gets it” and who doesn’t.

The ALI also noted that having judges and prosecutors elected doesn’t help fair and even-handed administration of the Code because politics gets in there, and pleasing constituents gets to play a more important role than following the constitutional protections to assure justice.

The broken core

Here’s the heart of why the Model Code doesn’t work and can never work: it all hangs on two opposing “irreconcilable constitutional commands”, as the ALI put it. Those commands are bound together in the phrase “guided discretion”. The intent of guided discretion was to put an end to the arbitrariness while allowing for the uniqueness of individual circumstances.

All murders are terrible, so who should get the death penalty? The Code said that juries need to weigh the terribleness of the murder, the “aggravating circumstances”. Was it heinous and cold-blooded and premeditated? Was it done in a particularly vicious, horrible, evil way? These questions were meant to guide juries in deciding who deserved death.

Maybe you can see the problem coming. See all those adjectives? Big problem, especially given the guideline that only the “worst of the worst” murders – not ordinary, garden variety murders – should get the ultimate penalty of death. In practice nobody knows what the Sam Hill that means. In the end, juries follow hunches or gut feelings, or whatever pulls people to decide things.

And that’s only the beginning of the difficulty with “guided discretion.” Here’s the other half of the irreconcilable commands: “discretion”. The guideline issued by the Supreme Court is that juries can consider mitigating circumstances of a person’s life when deciding whether the death penalty is warranted. Human beings have a way of showing up in a unique way, which means their actions are unique, influenced by an endless number of variables. Juries were to take these variables into account.

So, juries not only have to consider the facts of the crime but also the infinite number of factors that influence human beings to commit acts. And the sky’s the limit when it comes to mitigating circumstances: childhood abuse, genetic propensities such as fetal alcohol syndrome, age, mental acuity, family relationships, and so on, and so on. It’s infinite, and so, ultimately, not measurable.

After almost 50 years, that’s what the ALI finally recognized. What we, on the ground, have seen all along. The Model Code looked good on paper, but there’s just no systematic way to follow its guidelines.