Policy Issues

Arbitrariness

The death penalty is supposed to be reserved for only the worst of the worst crimes. But legally irrelevant factors such as race, geography, and the quality of counsel disproportionately determine who is sentenced to death.

DPIC Report: The 2% Death Penalty

DPIC Report: The 2% Death Penalty

How a Minority of Counties Produce Most Death Cases at Enormous Costs to All

DPIC Podcast: Discussions With DPIC

DPIC Podcast: Discussions With DPIC

Authors of Death-Penalty Study Discuss Tennessee’s ​“Death Penalty Lottery”

Overview

A punishment that is administered in an arbitrary way — that is, imposed on some individuals but not on others, with no valid justification for the difference — is unconstitutionally cruel, just as an excessively harsh punishment is cruel. Arbitrary punishments also open the door to racial and other discrimination: if the sentencing authority has inadequate guidelines, prejudice can lead to harsher penalties for disfavored minorities.

If speeders who drove yellow cars were consistently ticketed but speeders who drove other colored cars were not, the application of the speeding law would be considered unfair, even if there were no mention of a car’s color in the law. In a death penalty system in which less than 2% of known murderers are sentenced to death, fairness requires that those few who are so sentenced should be guilty of the most horrific crimes or have worse criminal records than those who are not. A system in which the likelihood of a death sentence depends more on the race of the victim or the county in which the crime was committed, rather than on the severity of the offense, is also arbitrary.

The Supreme Court struck down all death penalty laws in 1972 because their application was arbitrary. In 1976, constitutional guidelines were instituted in an attempt to prevent such capriciousness in the future.

At Issue

More than forty years of evidence strongly suggests that the Court’s guidelines have been ineffective. Irrelevant factors such as race, poverty, and geography still seem to determine who is sentenced to death. Short of applying the death penalty in all murder cases (a path condemned by the Supreme Court), it may be impossible to devise rules that clearly delineate which crimes and which defendants merit death and that juries and judges are able to consistently apply.

What DPIC Offers

DPIC provides statistics on executions, death sentences, and death row that include demographic information on the defendant and victim. DPIC has also highlighted relevant studies demonstrating the continued arbitrariness in the application of the death penalty.

News & Developments


News

Oct 29, 2024

Hearings Begin on Constitutional Challenge to Kansas’ Death Penalty and Capital Jury Selection Process

On October 28, 2024, hear­ings began in Kansas’ Wyandotte County District Court regard­ing the con­sti­tu­tion­al­i­ty of the state’s death penal­ty and its cap­i­tal jury selec­tion process. A coali­tion of the ACLU Capital Punishment Project, the ACLU of Kansas, the Kansas Death Penalty Unit, and the law firms Hogan Lovells and Ali & Lockwood brought the chal­lenge. The team argues that the death penal­ty, which is rarely used in Kansas, is arbi­trary, racial­ly dis­crim­i­na­to­ry, unre­li­able, and…

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News

Oct 04, 2024

A Chance at Life, Withdrawn: When Politics Interferes with Plea Deals

American pros­e­cu­tors have immense pow­er and rel­a­tive­ly unchecked dis­cre­tion in cap­i­tal cas­es. But in sev­er­al recent cas­es, death-sen­tenced pris­on­ers reached agree­ments with pros­e­cu­tors that would have saved them from exe­cu­tion, only to learn that anoth­er offi­cial had inter­fered to block the agree­ment. Critics have argued that these deci­sions sow pub­lic dis­trust in the legal process and raise con­cerns that gov­ern­ment offi­cials may be exploit­ing death penal­ty cas­es for political…

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News

Aug 06, 2024

Discussions with DPIC Podcast: Legal Fellow Leah Roemer on the Politicization of the Death Penalty

In this month’s episode of Discussions with DPIC, Managing Director Anne Holsinger speaks with Leah Roemer, DPIC’s Legal Fellow and a pri­ma­ry author of our recent report, Lethal Election: How the U.S. Electoral Process Increases the Arbitrariness of the Death Penalty. Leah grad­u­at­ed from Berkeley Law in 2023, where she par­tic­i­pat­ed in the Death Penalty Clinic and earned a cer­tifi­cate in Public Interest and Social Justice. Leah dis­cuss­es how some judges, pros­e­cu­tors, and…

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News

Jan 03, 2024

Overwhelming Percentage of Florida’s Hurst Resentencing Hearings End in Life Sentences

According to new research by the Death Penalty Information Center, 82% of Florida death-sen­tenced pris­on­ers who com­plet­ed new sen­tenc­ing pro­ceed­ings under Hurst v. Florida (2016) have been resen­tenced to life in prison with­out parole. Hurst found Florida’s death penal­ty scheme uncon­sti­tu­tion­al, and the Florida Supreme Court sub­se­quent­ly held that new death sen­tences must be unan­i­mous, neces­si­tat­ing new sen­tenc­ing hear­ings. Of the 157 cas­es DPIC pre­vi­ous­ly iden­ti­fied as…

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News

Jan 02, 2024

NEW STUDY: Research Suggests the Arbitrariness of Facial Features Affects Jurors’ Sentencing Decisions in Death Penalty Cases

A new study from Columbia University researchers indi­cates that jurors’ per­cep­tion of facial fea­tures in white defen­dants affects their sen­tenc­ing deci­sions, much like the bias­es that affect every day social inter­ac­tions and deci­sion mak­ing. Through four exper­i­ments with 1,400 vol­un­teers, the researchers found that when real-world defen­dants have facial fea­tures that appear untrust­wor­thy, they are more like­ly to be sen­tenced to death than life in prison.” Particular facial fea­tures, such as…

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