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

Mar 10, 2023

LAW REVIEWS— Getting to Death: Examining the Role of Race in the Steps Leading to a Death Sentence

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 the selec­tion of eli­gi­ble cas­es for exe­cu­tion and ulti­mate­ly to the exe­cu­tion itself. The authors applied rig­or­ous ana­lyt­ic meth­ods to a dataset of 2,328 first-degree mur­der cas­es in Georgia from 1995 – 2004 and found that two fac­tors have sig­nif­i­cant influ­ence: the race and gen­der of the vic­tim in the under­ly­ing murder.

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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 Hurst-eli­gi­ble — any­one sen­tenced to death by a non-unan­i­mous jury since 2002 — about two-thirds have been resolved and one-third remain. However, in April 2023, Governor Ron DeSantis signed…

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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 a heavy brow or down-turned lips, are known to cause oth­ers to view an indi­vid­ual as untrust­wor­thy, despite these…

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News

Dec 14, 2023

Texas Coalition to Abolish the Death Penalty Releases its 2023 Year in Review Report

A new report released by the Texas Coalition to Abolish the Death Penalty high­lights Texas’ con­tin­u­ing out­lier prac­tices in the admin­is­tra­tion of the death penal­ty. As one of just five states car­ry­ing out exe­cu­tions this year, Texas is respon­si­ble for a third of the 24 exe­cu­tions in 2023. Of the eight men exe­cut­ed, six dis­played sig­nif­i­cant intel­lec­tu­al or men­tal health impair­ments, includ­ing brain dam­age, intel­lec­tu­al dis­abil­i­ty, and a range of men­tal ill­ness­es. The vast major­i­ty of indi­vid­u­als exe­cut­ed by Texas in 2023 had sig­nif­i­cant men­tal impair­ments. What is even more appalling…

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News

Aug 15, 2023

Charles Ogletree, Death Penalty Scholar and Criminal Defense Advocate, Dies at 70

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 many stu­dents, includ­ing both Barack and Michelle Obama. In a 2014 Washington Post op-ed, he crit­i­cized the use of the death penal­ty in the United States, par­tic­u­lar­ly for peo­ple with severe men­tal ill­ness, brain impair­ments, or who suf­fer from the effects of severe trau­ma. He not­ed that bar­ring the death penalty…

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News

Jul 28, 2023

Louisiana Pardon Board Declines to Consider 56 Death Row Clemency Petitions Without Merits Review

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 their sen­tences to be com­mut­ed to life with­out parole, but the Board made its deci­sion to return the appli­ca­tions based on an advi­so­ry, non­bind­ing opin­ion from the Louisiana Attorney General Jeff Landry. Attorneys for death row pris­on­ers have respond­ed by argu­ing that the Attorney General’s office mis­in­ter­pret­ed the language…

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News

Jul 17, 2023

Application of Florida’s New 8 – 4 Capital Sentencing Scheme Moves the Goalposts” and Violates Constitutional Prohibition on Ex Post Facto Laws

Florida’s new death sen­tenc­ing law can­not apply to defen­dants who com­mit­ted their crimes before the law was passed ear­li­er this year, Florida Circuit Judge Kevin Abdoney rules. Florida law pre­vi­ous­ly required that a sen­tenc­ing jury must unan­i­mous­ly vote for death before the court could impose a death sen­tence, but in April of 2023, Gov. Ron DeSantis signed a bill into law that allows a jury to rec­om­mend a death sen­tence with as few as 8 votes. The rul­ing in Bryan Riley’s case means that the new law will not apply…

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News

Apr 25, 2023

Law Reviews — Racial Bias in Felony Murder and Accomplice Liability

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 arti­cle, writ­ten by Professors G. Ben Cohen (pic­tured), Justin D. Levinson, and Koichi Hioki states that Research sug­gests that the admin­is­tra­tion of accom­plice lia­bil­i­ty [and] felony mur­der doc­trines dis­pro­por­tion­ate­ly impact Black and minor­i­ty defen­dants,” caus­ing minor­i­ty defen­dants to be sen­tenced for first degree mur­ders they did not per­son­al­ly com­mit at greater rates than white defen­dants. The researchers’ expla­na­tion for this dis­par­i­ty is that Americans auto­mat­i­cal­ly indi­vid­u­al­ize white…

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News

Apr 14, 2023

LAW REVIEWS — Collection of Articles on the Death Penalty from Leading Scholars

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 his­to­ry of the death penal­ty, the fed­er­al death penal­ty, sen­tenc­ing trends, and the fed­er­al court’s role in cap­i­tal punishment:

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News

Mar 30, 2023

LAW REVIEWS— Who Lives and Who Dies Depends Heavily on a Thorough Investigation and Presentation of Mitigating Evidence in Death Penalty Cases

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 reviewed and drawn the con­clu­sion that the effec­tive inves­ti­ga­tion and pre­sen­ta­tion of mit­i­gat­ing evi­dence can fore­stall a death sen­tence no mat­ter how death-wor­thy the crime facts may appear at first glance.” Their study — titled Mitigation Works” — focused on high­ly aggra­vat­ed cap­i­tal cas­es that result­ed in life sen­tences, rather than death. The update expand­ed the num­ber of poten­tial death-penal­ty cas­es reviewed to about 600, while their prior…

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