Arbitrariness

The Death Penalty Is Not Limited to the Worst of the Worst

The death penal­ty is not reserved only for defen­dants who have com­mit­ted what soci­ety con­sid­ers the ​“worst-of-the-worst” crimes. 

People who com­mit heinous crimes have received a life (rather than death) sen­tence while oth­ers who com­mit much less egre­gious crimes face exe­cu­tion. For exam­ple, after con­vict­ing Zacarias Moussaoui for his role as a ter­ror­ist respon­si­ble for the attacks against the U.S. on September 11, 2001, a jury decid­ed that he should serve a life sen­tence in prison. Jared Loughner—who plead­ed guilty to killing six peo­ple, includ­ing a fed­er­al judge, and wound­ing 13 oth­ers, includ­ing a con­gress­woman, dur­ing a mass shoot­ing in Arizona — was sen­tenced to life in prsion as a result of a plea agree­ment with the U.S. Government. James Holmes, who was con­vict­ed of killing 12 peo­ple and injur­ing dozens more after he opened fire in a movie the­atre in Colorado, received a life sentence. 

United States Supreme Court Justice Stephen G. Breyer has raised sev­er­al ques­tions about the unpre­dictabil­i­ty of death sentences: 

  • Why does one defen­dant who com­mit­ted a sin­gle-vic­tim mur­der receive the death pen­alty (due to aggra­va­tors of a pri­or felony con­vic­tion and an after-the-fact rob­bery), while anoth­er defen­dant does not, despite hav­ing kid­napped, raped, and mur­dered a young moth­er while leav­ing her infant baby to die at the scene of the crime? 
  • Why does one defen­dant who com­mit­ted a sin­gle-vic­tim mur­der receive the death pen­alty (as a result of aggra­vat­ing cir­cum­stances of hav­ing a pri­or felony con­vic­tion and act­ing reck­less­ly with a gun), while anoth­er defen­dant does not, despite hav­ing com­mit­ted a ​“triple mur­der” by killing a young man and his pregnant wife?
  • Why does one defen­dant who par­tic­i­pat­ed in a sin­gle-vic­tim mur­der-for-hire scheme (plus an after-the­-fact rob­bery) receive the death penal­ty, while anoth­er defen­dant does not, despite hav­ing stabbed his wife 60 times and killed his 6‑year-old daugh­ter and 3‑year-old son while they slept? 
  • In attempt to answer these dis­crep­an­cies, Justice Breyer ulti­mate­ly con­clud­ed: “[W]hether one looks at research indi­cat­ing that irrel­e­vant or improp­er fac­tors — such as race, gen­der, local geog­ra­phy, and resources — do sig­nif­i­cant­ly deter­mine who receives the death penal­ty, or whether one looks at research indi­cat­ing that prop­er fac­tors — such as ​‘egre­gious­ness’ — do not deter­mine who receives the death penal­ty, the legal con­clu­sion must be the same: The research strong­ly sug­gests that the death penal­ty is imposed arbitrarily.”

Glossip v. Gross, 576 U.S. _​_​_​(2015) (Breyer, J., dissenting).