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Status Report on Capital Punishment 1 (April 1, 2008)

handle is hein.ali/misc0013 and id is 1 raw text is: Status Report on Capital Punishment

April 2008
Prior to the 2007 Annual Meeting's consideration of the Model Penal Code Sentencing Project,
Professors Roger S. Clark of Rutgers School of Law, Camden, and Ellen S. Podgor of Stetson
University College of Law submitted a motion (Annex 1) to have the Institute declare its opposi-
tion to capital punishment. After consultation with them, President Michael Traynor advised the
membership (Annex 2) that their motion would not be presented for a vote in 2007, that consid-
eration of whether the ALI should study and make recommendations about the death penalty
would be assigned to the Program Committee and Council, and that an electronic forum would
be established on which members could address the question.
Michael Traynor then appointed a special committee, chaired by ALI Council member Daniel
Meltzer of Harvard Law School, to advise the Program Committee. The Meltzer Committee's
report (Annex 3) discusses the ALI's consideration of the death penalty while the Model Penal
Code was being drafted half a century ago, the background to inclusion of § 210.6 on capital
punishment in the MPC, the history of the influence of that Section on American law, and the
constitutional status of the death penalty today. The report also lays out arguments for and
against the Institute's engaging in work on the death penalty as well as possible structures if the
ALI were to set out on such work. Specifically, the report discusses three options: an ALI call for
abolition of the death penalty in the United States, withdrawal by the ALI of § 210.6, or revision
of§ 210.6.
An online forum, moderated by Washington University School of Law Professor and ALl Secre-
tary Susan Frelich Appleton, and was made available to ALl members for about a month last fall.
The posted materials included the Meltzer Committee's report and a transcript (Annex 4) of the
discussion of this matter at last year's Annual Meeting. The comments submitted by ALI mem-
bers on the forum or otherwise last fall were provided verbatim to the Program Committee and to
the Council, along with a summary (Annex 5) prepared by Deputy Director Elena A. Cappella.
The Program Committee then recommended to the Council (Annex 6), and the Council by reso-
lution (Annex 7) agreed, that the Institute take further steps to consider American law regarding
the death penalty and its operation in practice. Director Lance Liebman was asked to identify one
or more individuals to write a paper that would review the literature, the case law, and reliable
data concerning important death-penalty issues. He has now engaged Professors Carol S. Steiker
of Harvard Law School and Jordan M. Steiker of the University of Texas Law School to under-
take this work. (This may well be the first time the Institute has appointed siblings on a single
venture.) The Director will soon name a small group of experts to advise and guide the Steikers
and to review their drafts. The paper is expected to be presented to the Council in December and
to be on the agenda of the 2009 Annual Meeting.
Lance Liebman and Michael Traynor will present an oral status report on this matter during the
opening session of the 2008 Annual Meeting on May 19, after which the floor will be opened for
brief comments on the process and on the issues that the Steikers' paper might address.

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