A recent study by HLS Professor Carol Steiker ’86 and her brother, Professor Jordan Steiker of the University of Texas Law School, has led the American Law Institute (ALI) to vote to withdraw the capital punishment section of its Model Penal Code.

The 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 make the administration of the death penalty less arbitrary. 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 way.

The Steikers’ study examined whether or not the death penalty was in fact being administered in compliance with the Constitution. They found that there are too many obstacles, both structural and institutional, to administering the death penalty in a non-arbitrary way, 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 forms 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.”

Following the release of the Steikers’ report, the ALI voted to withdraw its current rules regarding the administration of capital punishment, and to decline to create or issue new rules in their place, essentially suggesting that, under current conditions, there are no rules by which the death penalty could be properly administered. See New York Times article “Shapers of Death Penalty Give Up on Their Work.”

Carol Steiker is well known for her criminal law scholarship, and particularly for her research and writing regarding the death penalty. In addition to her scholarly work, she has worked on numerous pro bono litigation projects on behalf of indigent criminal defendants. She has also served as a consultant and an expert witness on issues of criminal justice for non-profit organizations and has testified before Congress and the Massachusetts legislature. In 2008, she received the Hugo A. Bedau Award from Massachusetts Citizens Against the Death Penalty.

Steiker is the Howard and Katherine Abel Professor of Law at HLS, a position she has held since 2007. She joined the HLS faculty in 1992 as an assistant professor of law, and was associate dean from 1998 until 2001. She is also a faculty associate of the Harvard University Edmond J. Safra Foundation Center for Ethics and a special advisor for public service.

In a Q&A, Steiker discusses the report’s findings:

1. In October, the American Law Institute withdrew the capital punishment section of its Model Penal Code, based largely on a report by you and your brother. How did the report come about?

The American Law Institute (ALI) has been at work since 2001 revising the sentencing provisions of the Model Penal Code—its first major criminal law project since the Model Penal Code was adopted in the early 1960’s. Initially, the question of capital punishment was set aside as outside the scope of the sentencing reform project. But at the ALI’s annual meeting in May 2007, some members of the ALI moved that the Institute take a position against the death penalty. In response, the ALI decided to commission a paper to assist the Institute in evaluating its response to the motion. ALI Director and former Harvard professor Lance Liebman engaged me and my brother Jordan Steiker (HLS ’88), a professor at the University of Texas School of Law and co-director of its capital punishment clinic, to prepare that report. The ALI also convened a group of experts, including judges and lawyers in addition to academics, to attend a conference to discuss a preliminary draft of the report. After this conference, at which a wide variety of views were aired, Jordan and I revised our paper and submitted a final draft to the ALI. After considering our report, the Council of the ALI recommended that the Institute withdraw the death penalty provisions of the Model Penal Code. At the ALI’s annual meeting in May 2009, two years after the initial motion, the body of the ALI discussed the paper for several intense hours and voted for withdrawal, but with an even stronger statement about the problems in the administration of the death penalty that our report had detailed, approving a motion that stated:

“For reasons stated in Part V of the Council’s report to the membership, the Institute withdraws Section 210.6 of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

In October 2009, the Council approved this stronger statement, and the withdrawal of the MPC’s death penalty provisions — along with the accompanying statement about “the current intractable institutional and structural obstacles to ensuring a minimally adequate system” — became the official policy of the ALI.

2. What was involved in the study?

Our study collected and evaluated the most recent information about the most significant issues surrounding the administration of capital punishment in the United States. The topics addressed included the limits of constitutional regulation of capital punishment, the politicization of the death penalty, racial discrimination in the administration of capital justice, juror confusion in capital cases, the inadequacy of resources (especially defense counsel services), the erroneous conviction of the innocent, the inadequate enforcement of federal constitutional rights, and the death penalty’s effect on the administration of non-capital criminal justice.

3. What do you expect will be the long-term impact of this decision?

For the first time since the 1960’s, the United States is seeing growing doubt and discomfort with the death penalty. In the past few years, a number of states have rejected capital punishment legislatively — New Jersey and New Mexico through straightforward legislative repeal and New York through the legislature’s refusal to re-authorize the death penalty after the state’s highest court invalidated New York’s capital statute on grounds that were easily fixable. A growing number of other states are currently considering measures to study, limit, or repeal their death penalty statutes. In this context, the decision of the ALI to withdraw the death penalty provisions of the Model Penal Code — provisions that provided the template for the majority of the states’ modern death penalty statutes — gives the proponents of repeal new strength and thoughtful support. The ALI is known for its careful and unbiased approach to legal reform, and its concerns should be and will be taken quite seriously.

4. Does this portend an eventual nationwide abolition of capital punishment?

As my brother Jordan and I have written (in a chapter in a book co-edited by HLS Professor Charles Ogletree entitled The Road to Abolition? NYU Press 2009), we doubt that all of the 35 states that currently authorize the death penalty will repeal their statutes any time in the foreseeable future. However, we also believe that a strong movement by enough of these states toward abolition could lead the United States Supreme Court to declare capital punishment unconstitutional under the Eighth Amendment as inconsistent with “evolving standards of decency” — the Court’s description of its constitutional test for “cruel and unusual punishment.” Nationwide abolition thus will happen judicially, rather than legislatively, if it happens at all. We are by no means certain that constitutional abolition will occur (or that it will not provoke a backlash if it does occur), but we think that the chances of such abolition are much greater know that at any time since the Court’s short-lived attempt at abolition in Furman v. Georgia in 1972.

5. What issues are being litigated in death penalty cases now?

There remains a great deal of litigation about modes of execution and whether current protocols for administering lethal injections are sufficiently humane, especially in light of recent cases of botched executions like that of Romell Broom in Ohio this past September. Concerns about the possible innocence of death row inmates are always compelling. The Supreme Court took the highly unusual step this past summer in the case of Georgia death row inmate Troy Davis of ordering a lower court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.” And questions about the adequacy of defense counsel performance, especially in the investigation of capital cases, are constantly an issue, reaching the Supreme Court with great frequency (three times in the past few months alone). Relatedly, in these difficult economic times, the same resource constraints that contribute to inadequate representation also can create extensive delays in resolving capital cases. The Supreme Court recently granted review to consider a Georgia capital defendant’s claim that his constitutional right to a speedy trial was infringed by that absence of any funding for his defense for 2 years, and the absence of representation altogether for a period of 14 months.

6. Were any HLS students involved in this report?

Yes, an excellent team of HLS students provided superb research support for our report. The team consisted of Andrew Crespo ’08, who was president of the Harvard Law Review and is currently clerking for Justice Stephen Breyer ’64, Sonam (Sandy) Henderson ’09, currently clerking for Judge Stephen Reinhardt on the 9th Circuit, Richard C. Chen ’09 and Marco Lopez ’09.