Imagine that speeders who drive yellow cars are ticketed but speeders who drive other colored cars are not. Whether or not the traffic law explicitly singles out speeders in yellow cars, a system that reaches that result in practice would be unfair. In a death penalty system in which approximately 2% of known murderers are sentenced to death1, fairness mandates that those few who are sentenced to death should be comparable to others who are sentenced to death – and worse than those who are not. A system in which the sentence of death depends more on the color of the victim or the county that the crime is committed in than on the severity of the offense is also arbitrary.
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In 1971, death row inmates from California and Ohio argued that the lack of standards for imposing the death penalty denied them due process of law as provided by the Fourteenth Amendment. McGautha v. California, 402 U.S. 183 (1971). The Supreme Court disagreed, stating that it would be virtually imposssible to construct beforehand the standards for sentencing to death:
To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.
402 U.S. at 205.
In McGautha, the Court described the value of jury discretion over mandatory sentencing, noting that broad jury discretion allows the jury to consider every circumstance found in each of an infinite variety of cases. The Court found no due process violation. However, the following year in Furman v. Georgia, 408 U.S. 238 (1972), the Court held that death penalty procedures violated the Eighth Amendment’s ban on cruel and unusual punishments.
In the 5-4 Furman decision, the Court held that the death sentences were unconstitutional as applied. In separate opinions with differing reasoning, the majority found that the lack of standards for imposing the death penalty enabled the penalty to be selectively applied, allowing for arbitrary application. Part of the arbitrariness concern was that the death penalty had been imposed unevenly, infrequently, and often selectively against minorities. Under the cruel and unusual punishment clause, a penalty is considered unconstitutionally imposed if it is administered arbitrarily or discriminatorily.
In Furman, the Court effectively declared void every state’s existing death penalty statute, commuted the sentences of death row inmates around the country, and suspended the death penalty.
Following Furman, states began enacting new statutes that they believed would lessen arbitrariness in capital sentencing. To address the unconstitutionality of unguided jury discretion, some states removed all of that discretion by mandating capital punishment for those convicted of capital crimes. However, this practice was held unconstitutional by the Supreme Court in Woodson v. North Carolina, 428 U.S. 280 (1976) because it did not allow for consideration of individual differences among defendants.
Other states sought to focus the jury’s discretion by providing sentencing guidelines to direct the jury when deciding whether to impose death. Georgia provided bifurcated proceedings, in which guilt and sentence are determined in separate trials. In the penalty phase, the jury must find at least one aggravating circumstance (characteristics that make certain murders worse than others) beyond a reasonable doubt before considering other evidence and making a decision between life or death. In an effort to safeguard against arbitrary sentencing, Georgia also created specialized appellate review. In 1976, Georgia’s guided discretion statute, as well as statutes in Florida and Texas, were approved when the Supreme Court decided Gregg v. Georgia, 428 U.S. 153. This landmark decision held that the new death penalty statutes were constitutional, thus reinstating the death penalty in those states. The Court also held that the death penalty itself was constitutional under the Eighth Amendment.
The Supreme Court later considered the scope of its Eighth Amendment arbitrariness analysis. Eleven years after Gregg, the Supreme Court examined whether statistical evidence linking race to the outcome of cases established a constitutional violation. McCleskey v. Kemp, 481 U.S. 279 (1987). McCleskey, an African-American death row inmate, presented the Court with a sophisticated statistical analysis showing a pattern of racial disparities in death sentences, based on the race of the victim. The study, conducted by Professor David Baldus, examined the death penalty in Georgia and found that the statistical evidence showed that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing African-American victims. McCleskey asked the Court to find that his death sentence was unconstitutional under the equal protection clause of the Fourteenth Amendment. The Court held, however, that racial disparities would not be recognized as a constitutional violation of equal protection unless intentional racial discrimination against the defendant McCleskey could be shown. McCleskey further argued that when race is a factor in selecting who will die, the death penalty is unconstitutional under the cruel and unusual punishment clause of the Eighth Amendment. The Court also denied this claim, reasoning that the study offered was insufficient to prove that the death penalty was being applied in an arbitrary manner.
Three decades after sentencing guidelines were approved by the Court in Gregg, the death penalty is still being unpredictably applied to a small number of defendants. There remains a lack of uniformity in the capital punishment system. Some of the most heinous murders do not result in death sentences, while less heinous crimes are punished by death.
Ineffective guidelines and constraints in the capital sentencing process can result in decision-makers falling back on their prejudices about who are the worst kind of criminals or who are the more sympathetic victims. Many factors other than the gravity of the crime or the culpability of the offender appear to affect death sentences, including geography, race, gender, and access to adequate counsel.
Regional variation in death sentences suggests arbitrariness in application. While one expects to see some variation from state to state, given differences in population, crime rates and laws, one also expects that in a just system, the law of a particular state would be applied uniformly in that state. (See, e.g., Frank R. Baumgartner, "The Geography of the Death Penalty," (2010) in Resources below).
A just system ought not to have death sentences concentrated in only one region. However, whether a person receives the death penalty depends heavily on where the crime was committed.
About one-quarter of Ohio’s death row inmates come from Hamilton County (Cincinnati), but only 9% of the state’s murders occur there. (R. Willing and G. Fields, Geography of the Death Penalty, USA Today, Dec. 20, 1999).
Baltimore City had only one person on Maryland’s death row, but suburban Baltimore County, with one tenth as many murders as the city, had nine times the number on death row. (L. Montgomery, Md. Questioning Local Extremes on Death Penalty, Wash. Post, May 12, 2002).
An investigation by seven Indiana newspapers in 2001 found that the death penalty depended on factors such as the views of individual prosecutors and the financial resources of the county. Two Indiana counties have produced almost as many death sentences as all of the other Indiana counties combined. (S. Bend Trib., Oct. 21, 2001).
In New York, although upstate counties experience 19% of the state’s homicides, they nonetheless account for 61% of all capital prosecutions. Three counties (out of 62 in the state) accounted for over one-third of all cases in which a death notice was filed. (Capital Punishment in New York State: Statistics from Six Years of Representation, Report from the Capital Defender Office, Sept. 2001 (data through June 30, 2001)).
Although one would expect federal law to be applied evenly, an investigation into the use of the federal death penalty by the Justice Department found significant geographic disparities in prosecutions. The country is divided into federal districts, and local U.S. Attorneys are required to submit all potential death penalty cases to the Attorney General for review and may make a recommendation about seeking the death penalty. The survey reported large disparities in the geographical distribution of federal death penalty recommendations.
From 1995-2000, 42% of the federal cases submitted to the Attorney General for review came from just 5 of the 94 federal districts.
Including the 21 districts that have never submitted a case for review by the Attorney General, from 1995-2000, 40 of the 94 federal districts never recommended seeking the death penalty for any defendant.
The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12, 2000).
In 2001, five days before the first federal execution in 38 years, Attorney General John Ashcroft issued a follow up report concluding there was no bias. The Federal Death Penalty System: Supplementary Data, Analysis and Revised Protocols for Capital Case Review, U.S. Dept. of Justice (June 6, 2001). Ashcroft, who claims that broader use of the federal death penalty will remedy the documented geographic disparities in federal capital sentencing, is a long-time supporter of capital punishment. (Wash. Post, 6/7/01).
The new report was widely criticized. U.S. Senator Russ Feingold noted that the Justice Department failed to complete a thorough analysis of the racial and regional disparities with outside experts.
See Senator Feingold's complete statement, in response to the report.
Professor David C. Baldus, law professor and statistician, reviewed the follow up report and its conclusions, noting that the report provided no explanation for clearly documented geographic and regional disparities in the administration of the death penalty:
The September 2000 report clearly shows that in practice the federal death sentencing system is largely a Southern program. Twelve of the 19 men on federal death row as of September were sentenced in the South, including 6 from Texas and 4 from Virginia. The new report focuses on regional differences in the racial composition of the pools of potential capital cases that the districts have generated (p. 17). This has nothing to do with regional disparities in the rates at which death eligible defendants in the system are capitally charged and sentenced to death.
Statement of Professor David C. Baldus to the Honorable Russell D. Feingold
Committee on the Judiciary, U. S. Senate, June 11, 2001.
When sentencing standards fail to adequately guide sentencers, decision-makers may fall back on conscious or unconscious prejudices about who are the worst kinds of criminals or who are the more sympathetic victims. Modern studies of the death penalty continue to find a correlation between sentencing and race. The studies consistently show that those who kill white victims are much more likely to receive the death penalty than those who kill black victims. Racial disparities in sentencing and executions suggest that race plays a role in the application of the death penalty.
In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination or both. (David Baldus, et al., In The Post-Furman Era: An Empirical And Legal Overview, With Recent Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998)).
According to the findings of a Governor-commissioned death penalty study conducted by researchers at the University of Maryland, defendants in Maryland are much more likely to be sentenced to death if they have killed a white person. (Prof. Raymond Paternoster et. al., An Empirical Analysis Of Maryland’s Death Sentencing System With Respect To The Influence Of Race And Legal Jurisdiction, Jan. 7, 2003).
A report released by the New Jersey Supreme Court found that, "There is unsettling statistical evidence indicating that cases involving killers of white victims are more likely to progress to a penalty phase than cases involving killers of African-American victims." (Asbury Park Press, Aug. 13, 2001).
A study in North Carolina found that the odds of a defendant receiving a death sentence were three times higher if the person was convicted of killing a white person than if he had killed a black person. The study, conducted by Professors Michael Radelet and Glenn Pierce, examined 15,281 homicides in the state between 1980 and 2007, which resulted in 368 death sentences. Even after accounting for additional factors, such as multiple victims or homicides accompanied with a rape, robbery or other felony, researchers found that race was still a significant predictor of who was sentenced to death. Michael L. Radelet and Glenn L. Pierce, Race and Death Sentencing in North Carolina 1980-2007 (89 N.C. L. Rev. ___ (Forthcoming 2011)).
Race-of-victim bias in the death penalty has been a persistent problem. In 1990, the U.S. General Accounting Office reviewed the research on this issue and found that in 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.
Some studies have also found bias against non-white defendants.
A sophisticated statistical study in Philadelphia by David Baldus found that for similar crimes committed by similar defendants, blacks received the death penalty at a 38% higher rate than all others. (Richard C. Dieter, The Death Penalty in Black & White – Death Penalty Information Center, 1998).
See also Race.
The quality of legal representation is related to the arbitrary application of the death penalty in that inadequate representation contributes to mistakes in capital sentencing.
The National Law Journal, after a study of death penalty representation in the South, concluded that capital trials are "more like a random flip of the coin than a delicate balancing of scales," because the defense attorney is "too often . . . ill-trained, unprepared [and] grossly underpaid." (M. Coyle, et al., Fatal Defense: Trial and Error in the Nation's Death Belt, Nat’l. L.J., June 11, 1990). States vary enormously in the quality of representation they provide to indigent defendants.
In Washington state, one-fifth of the 84 people who have faced execution in the past 20 years were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (Overall, the state’s disbarment rate for attorneys is less than 1%.) (Seattle Post-Intelligencer, Aug. 6-8, 2001).
In North Carolina, at least 16 death row inmates, including 3 who were executed, were represented by lawyers who have been disbarred or disciplined for unethical or criminal conduct. (Charlotte Observer, Sept. 9, 2000).
In Texas, about one in four death row inmates has been defended by lawyers who have been reprimanded, placed on probation, suspended or banned from practicing law by the State Bar. (Dallas Morning News, Sept. 10, 2000).
In Alabama, about 40 of the approximately 185 death row inmates – some within five months of filing deadlines for state appeals – do not have counsel. (N.Y. Times, July 5, 2001). See also Representation.
The Capital Jury Project studied more than 1,200 jurors from 14 states. Based on this research, Professors Bowers and Foglia conclude that the constitutionally mandated requirements established to guide juror discretion and to eliminate arbitrary sentencing are not working. The study identified the following constitutional problems:
Premature Decision Making - Interviews with jurors found that approximately 50% of those interviewed decided what the penalty should be before the sentencing phase of the trial. This is before they have heard penalty phase evidence or received the instructions on how to make the punishment decision.
Bias in Jury Selection - Researchers found that jury selection methods resulted in disproportionately guilt-prone and death-prone juries.
Failure to Understand Jury Instructions - The study found that 45% of jurors failed to understand that they were allowed to consider any mitigating evidence during the sentencing phase of the trial. In addition, two-thirds of jurors failed to realize that unanimity was not required for findings of mitigation.
Erroneous Beliefs that Death is Required - 44% of jurors said that they believed the death penalty was required if the defendant's conduct was heinous, vile or depraved, and nearly 37% of respondents said that the death penalty was required if the defendant would be dangerous in the future. The Supreme Court has ruled that no state can require the death penalty solely on the grounds that specific aggravating circumstances have been established.
Influence of Race - Researchers revealed that the chances of a death sentence in cases with a black defendant and white victim increase when there are five or more white males on the jury, and the chances decrease when there is at least one black male on the jury. These jurors have very different perspectives regarding lingering doubt, defendant remorsefulness, and defendant future dangerousness.
Underestimating the Death Penalty Alternative - Early findings of the study found that most jurors grossly underestimated the amount of time a defendant would serve in prison if not sentenced to death, and that the sooner jurors believed (wrongly) a defendant would return to society if not given the death penalty, the more likely they were to vote for death.
William J. Bowers and Wanda D. Foglia, Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51 (2003). A list of the publications reporting findings from the Capital Jury Project can be found here.
The number of women on death row is very small and hence it is difficult to draw any statistical conclusions about gender bias.
Justice Marshall cited the disparity in the number of death sentences imposed on men over women when the Court found the death penalty unconstitutional in 1972:
"There is also overwhelming evidence that the death penalty is employed against men and not women. … It is difficult to understand why women have received such favored treatment since the purposes allegedly served by capital punishment seemingly are equally applicable to both sexes."
Furman v. Georgia, 408 U.S. 238, 365 (1972) (Marshall, J.,concurring).
Death sentences and actual executions for female offenders are rare in comparison to such events for male offenders. In fact, women are more likely to be dropped out of the system the further the capital punishment system progresses.
women account for about 1 in 10 (10%) murder arrests;
women account for only 1 in 50 (2.0%) death sentences imposed at the trial level;
women account for only 1 in 60 (1.7%) persons presently on death row; and
women account for only 1 in 100 (1%) persons actually executed in the modern era.
Victor L. Streib, "Death Penalty For Female Offenders, January 1973 through October 31, 2010".
See also Women.
The death penalty is not necessarily applied to the worst of the worst offenders:
Prosecutors Agree To Life Sentence For Nurse Guilty Murdering 13 Patients
Charles Cullen, a former nurse, escaped the death penalty in an agreement with prosecutors in which he pled guilty to killing 13 hospital patients. (D. Kocieniewski, N.Y. Times, Apr. 30, 2004).
Man Who Admitted To 48 Murders Will Serve Life Sentence In Exchange For Cooperation
In a plea agreement reached with Washington state prosecutors, Gary Ridgway, a Seattle-area man who admitted to 48 murders since 1982, will serve a sentence of life in prison without parole. Prosecutors spared Ridgway from execution in exchange for his cooperation in leading police to the remains of still-missing victims. (Associated Press, Nov. 5, 2003).
Frank R. Baumgartner, "The Geography of the Death Penalty," (Univ. of North Carolina, Oct. 17, 2010) - U.S. executions since 1976 by county
Samuel R. Gross, Still Unfair, Still Arbitrary - But Do We Care?,Keynote Address, 26 Ohio N.U. L. Rev. 517 (2000).
Ben Steiner, Still Arbitrary: Capital Sentencing in the Post-Furman Era, 10 Crim. Just. Pol’y Rev. 85 (1999).
Michael Burkhead & James Luginbuhl, Sources of Bias and Arbitrariness In The Capital Trial, 50 J. Soc. Issues 103 (1994).
Vivian Berger, Black Box Decisions On Life Or Death - If They're Arbitrary, Don't Blame The Jury: A Reply To Judge Patrick Higginbotham, 41 Case W. Res. L. Rev. 1067 (1991).
Ronald J. Tabak, The Death of Fairness: The Arbitrary and Capricious Imposition of The Death Penalty In The 1980s, 14 Rev. of L. and Soc.Change 797 (1986).
David Baldus, et al., Arbitrariness And Discrimination In The Administration Of The Death Penalty: A Challenge To State Supreme Court," 15 Stetson L. Rev. 133 (1986).
John Blume, Theodore Eisenberg, and Martin T. Wells, "Explaining Death Row's Population and Racial Composition," Journal of Empirical Legal Studies, Volume 1, Issue 1,165-207, March 2004.
Last Updated May 3, 2013