The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code

21 Pages Posted: 29 Aug 2005

See all articles by Franklin Zimring

Franklin Zimring

University of California at Berkeley


The American Law Institute has launched a revision of its Model Penal Code provisions on sentencing and punishment that will be comprehensive in almost all respects. Conspicuously missing from the new sentencing project, however, is any examination of the Model Penal Code's provisions on capital punishment.

This essay argues that a reexamination of capital punishment is both necessary and practical as part of the larger sentencing reform project. Avoiding the death penalty is unprincipled and would leave the Model Code's single weakest section standing while every other sentencing provision would be subject to scrutiny. Failure to consider capital punishment would also ignore forty years of radical change in both the penal policy of developed nations and the vocabulary of concern that had redefined the death penalty as an issue of human rights and limits of government power. Ignoring the death penalty would launch a reform effort that will ignore the punishment for murder while rethinking everything else.

Nothing short of terror at the political cost can explain this retreat from the natural boundaries of sentencing reform. Yet fears of a principled reexamination of Section 210.6 are not well founded. The Institute could both take a principled position on the death penalty itself and also recommend minimum standards for capital cases where the penalty remains. To ignore the most visible and troubling aspect of American criminal justice is a much greater threat to the legitimacy of the Model Penal Code revision project than to confront it.

Keywords: capital punishment

JEL Classification: K42, K14

Suggested Citation

Zimring, Franklin E., The Unexamined Death Penalty: Capital Punishment and Reform of the Model Penal Code. Columbia Law Review, Vol. 105, No. 4, pp. 1396-1415, May 2005; UC Berkeley Public Law Research Paper No. 786144. Available at SSRN:

Franklin E. Zimring (Contact Author)

University of California at Berkeley ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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