American Law Institute gives up its Death Penalty Project

The NY Times has reported that the Amercian Law Institute (most famous for its Restatements of the Law series) has withdrawn Section 210.6 from its Model Penal Code. This Section provided for the sentencing procedure in capital punishment cases, and had been adopted by the US Supreme Court in many of its decisions. By using an aggravating-mitigating circumstances matrix, restricting the award of death penalty to the most serious of offences, and recommending procedural safeguards, the ALI had sought to reduce arbitrariness in the award of capital punishment. They have now walked away from this regime on the ground that experience has shown that “guided discretion” does not reduce arbitrariness in this area. In India, the Supreme Court has adopted a similar approach of reducing arbitrariness through the use of aggravating and mitigating circumstances. Though the Indian Supreme Court has itself recognized that it has been very arbitrary in handing out the death penalty (Santosh Kumar Bariyar v. State of Maharashtra), there has been no move (to my knowledge) to reopen the issue of the constitutionality of the death penalty. The report of the ALI, setting out its reasons for its decision, is available here.