Learning curves can be detected outside the judiciary too. Half a century ago, the American Law Institute issued its Model Penal Code. Section 210.6 of the code sought to provide legislators in states which decided to retain the death penalty with rules aimed at maximizing fairness and reliability in capital sentencing. The Gregg v. Georgiaruling cited provisions of §210.6 in giving the green light for executions to resume. Thirty-three years later, in 2009, the American Law Institute voted to withdraw §210.6 “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment”. It noted that §210.6 was “an untested innovation in 1962. Now we have decades of experience with the evolution of American capital punishment systems and capital punishment laws over the last half century”.8 In assessing whether to withdraw §210.6, the American Law Institute had considered, among other things, the inadequacies of the US Supreme Court’s constitutional regulation of the death penalty and of federal habeas corpus review generally, the politicization of the death penalty, racial discrimination, systemic juror confusion in capital cases, the under-funding of defence counsel services, and death sentences against the innocent.
Some politicians, too, have changed their minds on the death penalty. On 18 March 2009, for example, the Governor of New Mexico, Bill Richardson, signed into law a bill that made New Mexico the 15thabolitionist state in the USA.9In a statement, Governor Richardson explained that throughout his adult life he had been a supporter of the death penalty, but that in recent years he had come to the conclusion that its irrevocable nature rendered it an untenable punishment in an imperfect justice system:
“I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime. If the State is going to undertake this awesome responsibility, the system to impose this ultimate penalty must be perfect and can never be wrong. But the reality is the system is not perfect – far from it.”
Perfectibility is a theme taken up by the US administration’s August 2010 report to the United Nations in preparation for the forthcoming scrutiny of the USA’s human rights record under the Universal Periodic Review process at the UN Human Rights Council. The report opens with the following words: