Policy Issues
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.
How a Minority of Counties Produce Most Death Cases at Enormous Costs to All
Authors of Death-Penalty Study Discuss Tennessee’s “Death Penalty Lottery”
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.
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.
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.
Jan 24, 2020
In a dramatic reversal made possible by changes in court personnel, the Florida Supreme Court has repudiated its prior decisions requiring that capital sentencing juries unanimously agree to the death penalty before a trial judge …
Read MoreArbitrariness
Sep 13, 2023
In most states, a death sentence may only be imposed by a jury in unanimous agreement. But in two recent cases, defendants faced the possibility of a death sentence despite the objections of ju…
Arbitrariness
Aug 15, 2023
Charles Ogletree, Jr., a passionate advocate for racial and criminal justice, died on August 4, 2023, after a long illness. As a tenured professor at Harvard University, Professor Ogletree spoke and wrote often about the death penalty and mentored…
Arbitrariness
Jul 28, 2023
On July 24, 2023, the Louisiana Board of Pardons and Parole set aside all 56 clemency applications filed by nearly every death-sentenced prisoner in Louisiana last month without reviewing the merits of a single one of them. The prisoners asked for…
Arbitrariness
Jul 17, 2023
Florida’s new death sentencing law
Arbitrariness
Apr 25, 2023
A forthcoming article in the Denver Law Review discusses two theories of homicide law, the felony murder rule and accomplice liability, that create group liability for the actions of an individual. The
Arbitrariness
Apr 14, 2023
The following law review articles by several key death penalty researchers were recently published in 107 Cornell Law Review, No. 6, September, 2022. They cover a variety of issues, such as the interplay between race and capital punishment, the hi…
Arbitrariness
Mar 30, 2023
In a forthcoming update to their groundbreaking 2018 research on the importance of mitigation in death penalty cases, researchers Russell Stetler, Maria McLaughlin, and Dana Cook (pictured) have greatly expanded the number of capital cases revi…
Arbitrariness
Mar 24, 2023
An in-depth piece in the Huffington Post examines Harris County’s (Texas) system for providing representation to those facing the death penalty who cannot afford their own attorney. The process is explored through the story of Obel Cruz‑G…
Arbitrariness
Mar 10, 2023
In an article in the Cornell Law Review, Professors Jeffrey Fagan, Garth Davies, and Raymond Paternoster show how arbitrariness and race operate at each stage of a capital case, from charging death-eligible cases to plea negotiations to t…
Arbitrariness
Feb 17, 2023
In a 2022 article published in the Idaho Journal of Critical Legal Studies, author Sidney Balman (pictured), examines the relationship between racism and geographical arbitrariness in the application of the death penalty in the U.S. As in other ar…
