American Law Institute withdraws death penalty provision from Model Penal Code
On 23 October 2009, the ALI Council voted to accept the following resolution that was adopted by the Institute’s membership at the 2009 Annual Meeting:
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 report mentioned in the resolution is available here. The resolution is now the official position of the American Law Institute.
Recall that after CMA invalidated the military death penalty in United States v. Matthews, 16 M.J. 354 (C.M.A. 1983), President Reagan adopted the current military death system by Executive Order 12,460, which was based on what would become R.C.M. 1004 in the 1984 MCM, which had been drafted before CMA issued its Matthews opinion. See R.C.M. 1004 Drafters’ Analysis, Manual for Courts-Martial, United States, A21-74 (2008 ed.). The ALI’s now-withdrawn provision was one of sources to which R.C.M. 1004’s drafters looked when creating the new military death penalty system. The drafters noted that the “Working Group considered the capital punishment provisions of those states which now authorize capital punishment, as well as the ALI Model Penal Code § 201.6(3), (4) (Tent. Draft No. 9, 1959) (quoted at Gregg. v. Georgia, supra at 193 n.44).” Id. at A21-76. But R.C.M. 1004 is a goulash composed of ingredients from many other systems and “is not based on any specific state statute.” Id. In Loving v. United States, 517 U.S. 748 (1996), the Supremes rejected a separation of powers challenge to the President’s adoption of the post-Matthews military death penalty system.
1004 also seems to not reflect the changes vis-a-vis Ring and Apprendi.
Anon 12:31 beat me to it, but yes, Rule 1004 needs an overhaul to comply with Ring and Apprendi–soemthing I suggested to the JSC aboout 5 years ago. As for the issue of separation of powers . . . anyone who knows me knows where I stand on the sub silentio overruling of Loving by Ring v. Arizona.