“The capital justice system is irretreivably broken”

Apparently, this fall, the only “intellectually respectable” institution that had still supported capital punishment, the American Law Institute, changed their minds. New York Times legal writer Adam Liptak reports that:

“A study commissioned by the institute said that decades of experience had proved that the system could not reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. It added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections.”

The significance of this report is not the conclusion reached by the American Law Institute; after all, the ACLU, the Death Penality Information Center, the Southern Center for Human Rights, Amnesty International, and many other organizations have acknowledged the racial disparities, financial burden, risk of executing the innocent and mentally ill, and basic human rights violations embedded in capital punishment for decades. But it is signficant that the American Law Institute has now realized that “the capital justice system in the United States is irretrievably broken”, approximately fifty years after it had helped to create “the intellectual framework for the modern capital justice system”. In retracting their position, “What this does is pull the plug on the whole intellectual underpinnings for it,” according to Rutgers School of Law Professor Roger S. Clark.

So now what? It is one thing to shift legal theory, but another to shift public opinion and state legislatures. 35 states still employ the death penalty (but not Maine!), and four people have already been executed in 2010. The Death Penalty Information Center also reports that “in 96% of the states where there have been reviews of race and the death penality, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both”. There are deep structural problems within the capital punishment system and it is encouraging to see more legal institutes come on board against its use. The ACLU’s Capital Punishment Project engages in advocacy, public education, and direct representation of death row inmates, and you can learn more about its work here.