BETWEEN THE LINES Q&A with Richard Dieter

Between the Lines Q&A

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for release Jan. 20, 2010

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After 30 Years,
Architects of Death Penalty Guidelines
Withdraw Their Support

RealAudio

MP3

Interview with Richard Dieter,
executive director of the death Penalty Information Center,
conducted by Melinda Tuhus

deathpenalty

In early January, the legal institute responsible for creating a framework for the death penalty and believing 30 years ago that it would create a fair application of capital punishment statutes, withdrew its support while not coming out forcefully for repeal.

In 1972, the U.S. Supreme Court ruled that the death penalty was carried out arbitrarily by states, was cruel and unusual punishment and therefore unconstitutional. At that point, the American Law Institute, made up of the nation's most respected lawyers, judges and legal scholars, developed guidelines to help determine which individuals convicted of murder should face the death penalty. They included consideration of aggravating circumstances, such as multiple victims, death of a police officer, and the victim's age. They also considered mitigating circumstances, such as the conditions under which the perpetrator was raised, abuse he or she may have suffered, and mental incompetence. The Supreme Court relied heavily on these guidelines in determining whether states could re-institute their death penalties beginning in 1976.

Between The Lines' Melinda Tuhus spoke with Richard Dieter, executive director of the Death Penalty Information Center, about the Law Institute's withdrawal of support for its own capital punishment guidelines and what this could mean for efforts to abolish the death penalty in the U.S.

RICHARD DIETER: They tried to present the legal system with things like the model penal code -- ways of arriving at just sentences and criminal procedures that are fair, and they dealt with the death penalty -- at a time when the death penalty had no guidelines and was totally up to the jury, had no list of things they had to settle for -- they put out this code of how to deal with capital sentencing. And the Supreme Court, in approving the death penalty in 1976, took a state that followed it very closely, and other states followed suit. So the whole infrastructure, if you will, of the modern death penalty is built on this model penal code. They said, the American Law Institute, what we offered was our best advice, and it hasn't worked. We don't have any other way to make this system be trustworthy and fair, so we're withdrawing not only the model penal code, we're withdrawing from giving any advice. We don't think there can be a systematic way of deciding who should live and who should die that works out fairly.

BETWEEN THE LINES: So these guidelines weren't mandated by the Supreme Court, but they were pretty much what the Supreme Court said was needed in order for states to reinstitute the death penalty ... and some of these guidelines included mitigating and aggravating circumstances, right?

RICHARD DIETER: Yes, so instead of a jury just deciding who should live and who should die, consider this list of some mitigating things -- age, mental problems -- and consider, more importantly, the aggravating factors: What makes a murder death-eligible? What makes it the worst of the worst? States are free to pick their own lists, if you will, but they gave a model list of things that might be particularly heinous -- a tortuous murder, or multiple victims. So some states might pick the young age of the victim, but others might [not]. But the whole idea of having a list of aggravating factors came from the American Law Institute, and how you weigh those against the mitigating factors, and whether the jury needs to be unanimous, and all sorts of things were in that model penal code. The significant thing was you pretty much had to have that list to get the Supreme Court to approve your law. And almost all states have it that you have to find at least one of those aggravators, unanimously and beyond a reasonable doubt, and then the jury can go to the next step of weighing those against the mitigators. So there's a very clear set of steps that jurors take, whereas before it was, you found this person guilty, you can use your instincts to decide whether he should live or die. We're offering no guidance, and that was the law up until 1972.

BETWEEN THE LINES: So, Richard Dieter, the ALI is saying that the death penalty is still arbitrary?

RICHARD DIETER: Right. You know, if you look around...who gets the death penalty? There's been a lot of studies. It's much more likely that you'll get the death penalty if you've murdered a white person than if you've murdered a black person. Obviously, that's not in their list. It clearly makes a difference whether you're in Texas versus Kansas or most other states. Arbitrary factors have continued to plague the death penalty. Humans will fall back on their emotions and their biases and their arbitrary reasons, and politics will enter, and that's the death penalty experience of the past 30 years, so they just opted out of the whole process.

BETWEEN THE LINES: How important is this to the debate about capital punishment?

RICHARD DIETER: This is very important from a legal perspective, in the sense that the Supreme Court had struck down the death penalty for all federal, states, and the process by which they slowly allowed it to come back was an experiment. It wasn't a clear practice that they knew now was tested and would work. They said, we're going to approve this prospectively. So we've had a 30-year experiment, not just in the eyes of the American Law Institute, but in the eyes of the Court, and I think there probably is a growing consensus on the [Supreme] Court. I don't know if it's a majority, but a growing number, Justice Stevens being the prime example, where they've just concluded this thing isn't working. And I think there'll be a day when the U.S. Supreme Court strikes down the death penalty and this will be cited as one of the reasons.

Contact the Death Penalty Information Center at (202) 289-2275 or visit their website at www.deathpenalty.org

Related links:

"Pulling the Plug on Capital Punishment," The National Law Journal, Dec. 7, 2009

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Melinda Tuhus is a producer of Between The Lines, which can be heard on more than 45 radio stations and in RealAudio and MP3 on our website at www.btlonline.org. This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine,Between The Lines for the week ending Jan. 29, 2010. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo.

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