Tuesday, January 5, 2010

Death Penalty Intellectual Framework--Nah, Just Kidding!

When you study law you quickly encounter references to the Restatement of Law addressing various areas of the law.  For instance, there is a Restatement of the Law of Torts, Evidence, Property, and so on.  The Restatements are issued by the American Law Institute, the ALI,  which  is an independent and immensely influential group of legal scholars.  The ALI craft a "restatement" in nearly every area of law positing precisely where the law is, and where law is evolving.  The ALI's influence is so widely-acknowledged that as a law student or lawyer, you become accustomed to reading citations and excerpts to the Restatements in the opinions of every court.  You are meant to take for granted that the Restatements are THE LAW.

Adam Liptak, of the New York Timesreported, today, on the ALI's abandonment of the effort to "restate" the death penalty law.  In effect, the ALI by its actions have pulled the last underpinnings of intellectual support for the state killing of death row inmates in America. 

The Bad Lawyer is not a deep thinker, in fact by definition the Bad Lawyer is, well,  a bad lawyer, but the Bad Lawyer has known many good lawyers--and, notwithstanding, his personal limitations the Bad Lawyer cares deeply about crime and punishment.  The problem with capital punishment is that it runs headlong into the U.S. Constitution's  eighth amendment prohibition against "cruel and unusual punishments inflicted." and the fourteenth amendment's prohibition against State laws that "deprive persons of life, liberty or property without due process of laws, ...or, the equal protection of the laws."   Perhaps this is obvious to you, death is unusual as we have seen on this blog, some folks get the death penalty where other people committing essentially the same act in the same set of circumstances, walk, remember Gaile Owens

As Adam Liptak nicely parses the ALI decision, how can the death penalty framework "reconcile the twin goals of individualized decisions about who should be executed and systemic fairness. [The ALI report (on its decision to abandon efforts at a restatement)] added that capital punishment was plagued by racial disparities; was enormously expensive even as many defense lawyers were underpaid and some were incompetent; risked executing innocent people; and was undermined by the politics that come with judicial elections."  All concrns we've talked about on Bad Lawyer.  Now, it is time for the Supreme Court to act to end the farce of constitutional state killing of death row inmates, if a Bad Lawyer can understand these deep thoughts, the Nine certainly can.

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