ALI and State Bar of Georgia Join for Luncheon Meeting
by Dorothy Toth Beasley, Senior Judge, State of Georgia
ALI members and members of the State Bar of Georgia involved in the Atlanta luncheon included, from left: Joseph Bankoff, ALI member; Stephanie Parker, ALI member and host for the luncheon at Jones Day law firm; Judge Paul L. Friedman, speaker; Pamela Tremayne, Advisor to State Bar Judicial Procedure & Administration Committee; Dorothy Toth Beasley, Senior Judge, ALI member; Wilson DuBose, State Bar Executive Committee Liaison to JP& A Committee; Amy Totenberg; and Bryan Cavan, President, State Bar of Georgia.
On March 31, members of The American Law Institute and members of the State Bar of Georgia Judicial Procedure and Administration Committee gathered in Atlanta for what is believed to be the 25th time. This joint project of the ALI and the Committee began as an annual breakfast meeting; this year it took the form of a buffet luncheon in the beautiful dining room of the Jones Day law firm at the behest of partner and ALI member Stephanie E. Parker. The ad hoc planning committee consisted of Ms. Parker, ALI members James C. Nobles, Jr., and Dorothy Toth Beasley, and J. Kevin Moore, Chairperson of the State Bar committee, which has among its charges to “confer and advise with the American Law Institute in its work and promote its programs as may be of interest and benefit to the State Bar.” Special guests at the luncheon were Bryan Cavan, President of the Georgia State Bar, and Stephanie Middleton, the new Deputy Director of the ALI.
The meeting’s highlight was a presentation on the Model Penal Code by Paul L. Friedman, Senior Judge of the United States District Court for the District of Columbia. Judge Friedman was a particularly appropriate speaker, as he serves on the ALI Council and its Executive Committee, is Chair of the Program Committee, and is an Adviser on the Institute’s project on the Sentencing provisions of the Model Penal Code. He first discussed the ALI membership’s 2009 resolution, subsequently affirmed by the Council, to withdraw § 210.6 of the Model Penal Code dealing with the death penalty, describing the procedural steps leading to this action. Judge Friedman then discussed the ALI’s current Sentencing project, for which Professor Kevin Reitz of the University of Minnesota is the Reporter.
Judge Friedman pointed out that the Institute’s work on the Model Penal Code was particularly significant because no work in the field of criminal law had been undertaken by the ALI since the Code’s adoption in 1962. He said the original Sentencing provisions focused on rehabilitation, providing for indeterminate sentences imposed with judicial discretion, as well as with parole-board discretion after certain periods of time had been served. In contrast, Judge Friedman noted the recent trend emphasizing punishment or retribution rather than rehabilitation, as many jurisdictions have adopted determinate sentencing with the objective of “truth in sentencing.” The new Model Penal Code recommends a hybrid approach that would allow the pursuit of utilitarian goals like rehabilitation, but only when the sentence is also proportionate to the gravity of the offense. He described different versions of sentencing guideline systems, noting that some states have sentencing commissions, which ideally are composed of representatives of all stakeholders in sentencing, and discussed the impact of Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005). The hot issues still to be resolved by the Council and the membership, he said, were determinate versus indeterminate sentences; “second look” provisions for determinate sentences, such as compassionate release; and the sentence of life without parole and its ramifications. Judge Friedman related that, to ensure that his presentation was up to date, he had gone to the Supreme Court the previous day to hear arguments in two sentencing cases, Dillon v. United States, 2010 WL 1285404 (oral argument, Mar. 30, 2010), involving resentencing and sentencing modifications, and Barber v. Thomas, 2010 WL 1285402 (oral argument, Mar. 30, 2010) involving how to calculate good-time credits.
Discussing the death penalty, Judge Friedman related the history of its inclusion in the Model Penal Code, the Supreme Court’s citation to § 210.6 of the Model Penal Code in 1976 when it determined that the death penalty could be administered in a constitutional way, the use of § 210.6 in the states, and finally the events that led ALI to withdraw the provision: the 2007 motion by Professors Ellen Podgor and Roger Clark that the Institute state its opposition to the death penalty, the Institute’s commission of an extensive report on the death penalty prepared by Professors Carol Steiker and Jordan Steiker, and the membership’s vote at the 2009 Annual Meeting on the Council’s recommendation that the provision be withdrawn from the Model Penal Code. Judge Friedman was the Council member who presented the Council’s report and resolution to the membership.
Looking ahead, Judge Friedman mentioned several other areas of criminal law that may be taken up by the ALI, such as collateral consequences of sentences and the outmoded definitions of certain crimes, particularly sex crimes. He ended his lively discussion by urging participation in the Sentencing project and in other important ALI work.