Steiker Study Influential in Connecticut’s Decision to Abolish Death Penalty

Harvard Law Today
September 15, 2015

A study on capital punishment co-authored by Harvard Law School Professor Carol Steiker ’86 and her brother Jordan Steiker ’88, a professor at the University of Texas School of Law, was influential in Connecticut’s recent decision to abolish the death penalty in that state.

In August, the Connecticut Supreme Court ruled that executing inmates on the state’s death row would violate the constitution of Connecticut, effectively striking down the death penalty.  This decision came three years after Connecticut abolished capital punishment, but left death sentences intact for inmates already on death row.

In its decision, the court relied heavily on a report commissioned by The American Law Institute, the nation’s most influential non-partisan law reform organization. The 2009 study, “Report to the ALI Concerning Capital Punishment,”  completed by Carol Steiker and Jordan Steiker, examined the effectiveness of the Model Penal Code’s death penalty provisions, which were enacted by the ALI in 1962 and were designed to make the administration of the death penalty less arbitrary.

“It is gratifying to have our ALI report read by jurists and cited in this pathbreaking decision,” said Carol Steiker.  “This kind of impact is exactly why Jordan and I took on the project at the ALI’s request.”

The Steikers’ study found that there are too many insuperable obstacles, both structural and institutional, to administering the death penalty in a non-arbitrary way, and recommended against a new death penalty reform project on the grounds of its likely futility. The report led to The American Law Institute’s vote to withdraw the capital punishment provisions in the Model Penal Code.

In support of the decision to strike down the death penalty, the Connecticut Supreme Court opinion cited declining death penalty use across most jurisdictions, as found in the 2009 study. The total number of executions carried out nationally has fallen by more than 60 percent from the post-Furman peak of 1999, dropping from 98 in 1999 to 39 in 2013, and then falling again to 35—a 20 year low—in 2014. Of the 35 executions carried out in 2014, approximately 90 percent occurred in just four states: Texas, Missouri, Florida, and Oklahoma.

The court’s opinion also cited the conclusions reached by the ALI study to the effect that “the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved” (emphasis added by the Connecticut Supreme Court). Read the full opinion online.

The Steikers have been frequent collaborators in scholarship, litigation, and law reform. They are currently co-writing a book about the past half-century’s experiment with the constitutional regulation of capital punishment in America.

Carol Steiker currently directs, with Professor of Practice Alex Whiting, the new Criminal Justice Program of Study, Research, and Advocacy, a new initiative at Harvard Law School that seeks to analyze problems within the U.S. criminal justice system and look for solutions. The program was made possible by a recent gift that allowed the school to expand the mission of its existing Criminal Justice Program of Study beyond advising students to include research and policy advising in partnership with criminal justice agencies and NGOs.

In an interview with the Harvard Gazette in February, Steiker, who has done extensive research on capital cases, said her interest in criminal justice was sparked during law school. “It began to appear to me that criminal justice was a great engine of American inequality,” she said.

As a 2014–2015 Rita E. Hauser Fellow at the Radcliffe Institute for Advanced Study at Harvard University, Steiker focused her research on providing a better understanding of the roles played by the Constitution and the Supreme Court in the past, present, and future of the death penalty in America. In May, Steiker gave a talk on Capital Punishment and American Law.

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