On October 23, 2009, the American Law Institute (ALI) Council voted overwhelmingly, with only a few abstentions, to accept the resolution of the capital punishment matter as approved by the Institute’s membership at the 2009 Annual Meeting in May. The resolution adopted at the Annual Meeting and now accepted by the Council reads as follows:

“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.”

The ALI is a highly distinguished and very influential legal institute, that over the years, has composed model statutes and “restatements of the law” in a wide variety of legal fields. A large number of the ALI’s model statutes and “restatements of the law” have been adopted by state legislatures and courts throughout the country as part of a movement over the past 50 years to bring some uniformity to the laws of the different states.

Before Furman was decided in 1972, the ALI had issued a model death penalty statute. When Furman struck down all of the then-existing state death penalty statutes, several states adopted new statutes patterned after the ALI model statute. In 1976, the Supreme Court decided Gregg v. Georgia which approved Georgia’s version of the ALI model statute. Shortly thereafter, virtually all of the death penalty states, including Tennessee, followed suit and adopted their own death penalty statutes patterned after the ALI model.

The ALI model statute provided for bifurcated hearings – guilt and sentencing – along with statutorily defined aggravating and mitigating circumstances and the requirement for juries to consider aggravators vs mitigation in reaching a final sentencing decision. This kind of statute purportedly calls for “guided” or “channeled” sentencing discretion – a supposed compromise between the discretionary statutes struck down in Furman and the strictly mandatory statutes which the Court also held to be unconstitutional in 1976.

Therefore, it is highly significant that the ALI has now withdrawn its model death penalty statute – which provided the template for virtually all of the existing death penalty statutes in our country -- on the grounds that it doesn’t work.