Not all the important turning points in America’s epic struggle over the death penalty get noticed immediately by the mass media and the public. A quiet blockbuster this year was the decision of the American Law Institute, a little-known but prestigious organization of lawyers and judges, to withdraw its approval for the standards created by the institute’s 1963 Model Penal Code to guide juries in the choice between long prison terms and execution.

Ordinarily, the decision of a non-governmental organization to reject a sentencing system it adopted in the early 1960s would richly deserve public obscurity. With states like New York and Massachusetts turning back efforts this decade to revive capital punishment, and with New Jersey and New Mexico abolishing their death penalties, why pay much attention to the American Law Institute? Because the institute has pulled the intellectual rug out from under the current system of deciding between life and death in 30 death-penalty states.

By an accident of history, the American Law Institute’s death-penalty standards became the dominant system used in the United States. When the institute was considering its great criminal law reform effort in the 1950s, the 35 states that mandated death as a penalty for murder required juries to choose between imprisonment and execution for first-degree murder with no explicit legal standards or substantive guidance. That system would have been a problem for the criminal law experts advising the Model Penal Code, but they had much larger objections to the death penalty: They voted, 18-2, that the Model Code should reject death as a state punishment and never discussed how juries should choose a penalty they rejected on the merits. The institute’s governing council decided instead that the Model Code should take no position on death as a punishment.

But if executions couldn’t be excluded, how could a reform effort allow a life and death decision to be made in an utterly lawless fashion? So Herbert Wechsler, the brilliant director of the Model Penal Code project (and no friend of capital punishment) designed § 210.6 of the Model Penal Code, a two-stage process for first excluding persons and crimes from death eligibility and then providing a process for the other cases, balancing aggravating and mitigating factors to guide a jury. In one respect, this was an important step forward from the lottery of unguided discretion — because groups of offenses and offenders were excluded from capital punishment by legal rule.

But the code was weak because the “aggravating factors” that make murders death-eligible include broad and problematic categories such as killings committed during felonies. And there was no kind of crime or class of offender identified for which the code thought death was the preferred result, so this ultimate decision — who should die — was still without a legal standard or justification. Such were the wages of ambivalence.

The states with death penalties showed no interest in any form of death penalty regulation until the U.S. Supreme Court rejected all standardless death sentences in the 1972 case of Furman v. Georgia. The Furman decision motivated many states to copy the structure of aggravating and mitigating circumstances from § 210.6 as an attempt to get around the Supreme Court’s objections. When the Court approved Georgia’s Model Penal Code-style system in the Gregg v. Georgia decision of 1976, the institute’s § 210.6 pattern of procedure became the dominant method of life versus death decision-making. Most states distorted the institute’s restrictive intentions by adding long lists of their own aggravating factors and failing to create meaningful systems of appellate review. So the forms of standards embraced by the Supreme Court in Gregg v. Georgia were a false promise from day one.


For three decades, however, the Amer­ican Law Institute was silent about the Frankenstein monster it had helped create. Then, this past spring, the institute’s members proposed the withdrawal of approval of § 210.6, a step the governing council approved this fall. Having seen the system in action, the institute now seeks disengagement from the legal machinery of American capital punishment.

Now that the creators of the modern system of death penalty sentencing have disowned that system, there is no support for distinguishing the current death penalty lottery from the lawless system that Furman condemned. The apparatus that the Supreme Court rushed to embrace in 1976 has been exposed as a conspicuous failure. What might this portend for the future of the penalty?

There is little prospect that state execution is in any imminent constitutional danger, because it is unlikely that a Supreme Court of John Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel Alito Jr. will soon acknowledge the failure of the Gregg v. Georgia experiment. But the loss of legitimacy among the legal establishment is a major threat in the middle-term future.

The declining legitimacy of the death-penalty system in the legal profession must trouble all but the most extreme justices. The Supreme Court’s close association with state killing has never been a comfortable one, and the collapse of any pretense of principle to support the system of death-penalty sentencing will eat away at the Court’s toleration of execution. No matter its political power, an execution system without principle cannot long survive in a government committed to the rule of law.

Franklin E. Zimring is the William G. Simon Professor of Law and Wolfen Distinguished Scholar at the University of California, Berkeley School of Law.