Arbitrariness

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 DPI Offers

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