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February 19, 2010

Steikers’ study cites obstacles to fair administration of death penalty, supports American Law Institute decision to repudiate model death penalty provision

Photo of Jordan Steiker
Jordan M Steiker, Judge Robert M Parker Endowed Chair in Law

A study by Professor Jordan M. Steiker of the University of Texas School of Law and his sister, Professor Carol Steiker of Harvard Law School, provided the foundation for the American Law Institute’s vote last fall to withdraw the capital punishment section of its Model Penal Code—a move that the New York Times recently described as so significant it represents “a tectonic shift in legal theory.”

The ALI is the leading intellectual force in the legal profession, with a membership of about four thousand judges, lawyers, and law professors. The death penalty provision it withdrew had provided the blueprint for death penalty laws in this country over the past thirty-five years.

The Steikers’ study, which was requested by the ALI, examined the effectiveness of the Model Penal Code’s death penalty provisions, which were enacted in 1962 and were designed to improve American capital practice. The Model Penal Code provisions were cited by the U.S. Supreme Court in 1976 when it determined that the death penalty could be administered in a constitutional manner.

The study examined the extent to which contemporary death penalty practices have resolved the difficulties that had prompted the Supreme Court to invalidate essentially all prevailing capital statutes in 1972. The study found that there are too many obstacles, both structural and institutional, to administering the death penalty in a non-arbitrary and reliable manner, and recommended that the ALI avoid any attempt to come up with new rules regarding its proper administration.

The report stated: “The foregoing review of the unsuccessful efforts to constitutionally regulate the death penalty, the difficulties that continue to undermine its administration, and the structural and institutional obstacles to curing those ills form the basis of our recommendation to the Institute. The longstanding recognition of these underlying defects in the capital justice process, the inability of extensive constitutional regulation to redress those defects, and the immense structural barriers to meaningful improvement all counsel strongly against the Institute’s undertaking a law reform project on capital punishment, either in the form of a new draft of § 210.6 or a more extensive set of proposals. Rather, these conditions strongly suggest that the Institute recognize that the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved.”

After a two-year process—in which the Steikers consulted with national experts, revised their report, and had their recommendations considered by the ALI membership—the ALI Council and membership ultimately voted overwhelmingly to withdraw its current provisions regarding the administration of capital punishment and to decline to create or issue new rules in their place, essentially determining that, under current conditions, there are no rules by which the death penalty could be properly administered.

The significance of that action was the subject of a lengthy New York Times story in mid-January by Adam Liptak who wrote, “There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely. But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.”

In addition, the ALI’s decision has been the focus of several commentaries in recent weeks. Michael Traynor, the president emeritus of the ALI, discussed the Institute’s decision in the Los Angeles Times: “The withdrawal of the model death penalty statute recognizes that it is impossible to administer the death penalty consistently and fairly, and it therefore should not remain a punishment option in this country. The institute could no longer play a role in legitimizing a failed system,” he wrote in a February 4, 2010, op-ed. He noted that the institute did not reach its conclusions lightly, but made them only after it had “commissioned a special committee and a scholarly study, heard various viewpoints and debated the issues extensively.”

Jordan M. Steiker holds the Robert M. Parker Endowed Chair in Law at the University of Texas School of Law. He joined the faculty in 1990 after serving as a law clerk to Justice Thurgood Marshall of the United States Supreme Court. He teaches constitutional law, criminal law, and death penalty law, and is co-director of the Law School’s Capital Punishment Center. He has written extensively on constitutional law, federal habeas corpus, and the death penalty.

Some of his recent publications include: Death Penalty Stories (with John H. Blume, eds., New York: Foundation Press, 2009); “Brown’s Descendants” (Howard Law Journal, 2009); “Atkins v. Virginia: Lessons from Substance and Procedure in the Constitutional Regulation of Capital Punishment” (with Carol S. Steiker, DePaul Law Review, 2008); “Opening a Window or Building a Wall? The Effect of Eighth Amendment Death Penalty Law and Advocacy on Criminal Justice More Broadly” (with Carol S. Steiker, University of Pennsylvania Journal of Constitutional Law, 2008); and “Improving Representation of Capital Cases: Establishing the Right Baseline in Federal Habeas to Promote Structural Reform Within States” (American Journal of Criminal Law, 2007).

In a Q & A, Jordan Steiker discusses the study’s findings and impact:

Q. How long did it take to conduct the study and what was involved?

A. The study took almost a year to complete. As part of our work, we collected and evaluated the most recent information about the most salient issues surrounding the administration of capital punishment in the United States. We focused on the federal and state courts’ efforts to regulate death penalty practices (primarily via the Eighth Amendment), the politicization of the death penalty, the role of race in the administration of capital justice, the ability of contemporary statutes to guide jurors in their capital decision making, the adequacy of resources (especially defense counsel services), the risk of erroneous conviction of the innocent, the adequacy of federal enforcement of federal constitutional rights, and the death penalty’s effect on the administration of non-capital criminal justice.

Q: What has been the impact of the ALI’s decision to withdraw the capital punishment section from the Model Penal Code?

A: The ALI’s decision to withdraw the capital punishment section (along with the accompanying language explaining the basis for its withdrawal) has been widely noted as a significant development. The ALI provided important support to the effort to revive the death penalty in the mid-1970s, and the MPC capital punishment section served (and continues to serve) as a blueprint for most current state capital schemes. By withdrawing its death penalty provision and acknowledging the prevailing obstacles to a workable capital system, the ALI strongly undercuts the foundation of the American system of capital punishment.

Q: Why was it so significant that ALI voted to repudiate its previous position regarding capital punishment?

A: The ALI brings considerable experience and prestige to questions of institutional design in American criminal justice. So its voice on the question of the American death penalty carries considerable weight. Moreover, the ALI is not a political organization and its decision regarding the capital punishment provision is not rooted in moral opposition to the death penalty. It rests entirely on the feasibility of fairly and accurately administering the death penalty—whether the death penalty in practice can satisfy minimum requirements in pursuit of societal goals.

Q: Are you working on any related projects now?

A: I am currently serving on the ABA Death Penalty Moratorium Implementation Project Steering Committee. That Project seeks to gauge the progress of states in satisfying minimum standards for administering the death penalty. It’s the most ambitious effort in place today to monitor the use of capital punishment on the ground.

Q. How will law students be impacted by the ALI’s decision?

A. The Model Penal Code provides the intellectual foundation for American criminal statutes, and students are immersed in its details as part of their study of law. Students will likely learn much about the American death penalty by studying the ALI’s changing position on the feasibility of drafting a workable capital statute.

Q. Did law students participate in the research or writing of your study?

A: A number of students (both here at UT Law and at Harvard) provided important assistance in the research. In particular, Meghan Shapiro, ’09, provided excellent support.

Related links:

Report of the Council to the Membership of the American Law Institute On the Matter of the Death Penalty (PDF)

ALI withdraws Sec. 210.6 (Capital Punishment) of the Model Penal Code, in a Message from ALI Director Lance Liebman


Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or