“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.