Spring 1997, Volume XII, Number 2 The Death Penalty Arbitrariness and the Death Penalty Editor: Twenty-five years ago, the U.S. Supreme Court -- in the case of Furman v. Georgia (1972) -- temporarily curbed the death penalty, because its application was arbitrary and capricious ("wantonly and so freakishly imposed," to quote Justice Potter Stewart in a concurring opinion). Is the use of the death penalty today more consistent and less arbitrary? Austin Sarat: The death penalty today is, I think, no less inconsistent, no less arbitrary. Gregg (1976) didn't eliminate arbitrariness; it just narrowed the range of cases in which arbitrariness could occur. McCleskey (1987) provided the best evidence that the problems that concerned the Supreme Court in 1972 were alive and well in the late 1980s. The recent de-funding of death penalty resource centers and limitations on habeas have not helped to produce greater fairness. David Baldus (University of Iowa/Law School): The issue of arbitrariness, in the sense of comparative excessiveness, does not appear to be a matter of public concern. Furman and Godfrey v. Georgia (1980) are the last Supreme Court decisions that expressed any concern about whether it is possible to distinguish death cases, in any meaningful way, from the great bulk of similar cases that result in less severe punishments. Pulley v. Harris (1984) took the issue off the screen, so far as the Eight Amendment is concerned. James Coleman (Duke University/Law School): An argument can be made that application of the death penalty today is more arbitrary and more inconsistent. And I am not sure that the range of cases in which it is available really is that much narrower. The Court's decision in Gregg essentially reached the same conclusion that Justice Harlan had reached in McGautha (1971) -- that there is no practical way to guide a jury's ultimate decision whether to impose the death penalty. In the end, the only thing that can be done is to give each defendant facing the death penalty an opportunity to plead for mercy. That was the upshot of Lockett v. Ohio (1978). But Gregg went beyond McGautha and erected the complex guided discretion systems that now exist, imposing super due process requirements, ostensibly for the purpose of limiting or guiding the jury's (or other sentencer's) discretion. Rather than fairness, the result primarily has been complexity. In Furman, for example, Justice White posed the question whether one could make a meaningful distinction between the cases in which the death penalty was imposed and those in which the defendant was eligible for the death penalty but it was not imposed. The answer was "no," and that was proof that the sentence was arbitrary. The answer, in my view, is still "no", despite Justice White's later change of judicial mind. Shari Diamond: Justice Harlan may have been right in McGautha, when he wrote that it was "beyond present human ability" to identify in advance those characteristics of the defendant or the crime that call for the death penalty. Even if he was wrong -- and it would be possible, we certainly haven't done it. Although we've taken rape off the table (unless it accompanies a homicide), prosecutorial, judicial, and jury discretion are remarkably wide. The labyrinthine sentencing instructions provide little guidance, leaving juries to rely on their own devices rather than to be guided by legal standards (such as they are). The instructions also create new sources for disparity -- two triers of fact can easily arrive at different decisions on the same defendant if they find different meanings in the instructions, even if they are making every effort to adhere to them. Whether intentional or unintentional, curable or incurable, the structure currently in place offers no serious support for consistency in judgment. It is interesting to ask whether a "twister" is more arbitrary than a lightning bolt. Leigh Bienen: It seems there is more uniformity in rhetoric than there is uniformity across jurisdictions. The huge discrepancies in the number of death sentences imposed and the number of executions across state jurisdictions indicate to me that arbitrariness has not decreased. The culture of the death penalty is very different in Texas and Alabama than it is in New Jersey or New York. But more importantly, a court which has affirmed many death sentences (e.g. the Pennsylvania Supreme Court, or the Texas Court of Criminal Appeals) is going to have a very different attitude toward capital appeals than a court where a death sentence is a relatively rare event. Some courts now treat the affirming of death sentences as routine. James Acker: The relative lack of data concerning the administration of the death penalty in pre-Furman days makes comparative assessment of the pre- and post-Furman levels of arbitrariness difficult. However, perhaps we can make some inferences from post-Furman statutes. Two structural legislative changes occurred post-Furman. First, some crimes -- rape, burglary, kidnap, robbery -- were eliminated as capital offenses. Theoretically (but probably not in practice), the death penalty also was limited to a narrower class of criminal homicides. Second, capital trials became bifurcated in all jurisdictions. But the post-Furman legislative reforms accomplished little else. The schemes purport to regulate only sentencing discretion; they do not even aspire to control charging discretion, which remains a major source of arbitrariness. The class of death penalty-eligible murders remains quite broad. Statutes give minimal guidance about how sentences should be imposed, and the evidence suggests that sentencers simply ignore the statutory guidelines. Prima facie, then, there is little reason to expect that the level of arbitrariness has changed much over time. In short, with the notable exception that rape (of adults) has been eliminated as a capital offense, it's hard to conclude that we have more or less arbitrariness now than in pre-Furman times. But I do think it is relatively easy to conclude that the amount of arbitrariness now remains unacceptably high. David Baldus: It is difficult to know whether there is more or less arbitrariness than pre-Furman, primarily because there is so little data available on which to base such judgments (see Acker above). Our Georgia research (Baldus, Woodworth and Pulaski) examined this issue with a comparison of 240 pre-Furman with 600 post-Furman cases, and we saw some improvement. The post-Furman cases continued, nevertheless, to reveal a lot of excessiveness, none of which was explicitly corrected by the Georgia Supreme Court. [Speaking nationally], the problem is aggravated by the decline -- to nearly zero -- in the use of executive clemency, which formerly set to life many of the least aggravated cases. This has been offset, in part, by the more active intervention of some state [appellate] courts which reverse 25-35% of death sentences on legal grounds. Leigh Bienen: I don't think the arbitrariness can ever be eliminated unless prosecutorial discretion is abolished, and that will never happen. Since whether you are sentenced to death is hugely affected by the economic resources available to the defendant, that raises fundamental questions about justice. I don't think the death penalty can ever be administered justly, although it can certainly be administered more justly than it is at present. James Coleman: One still cannot explain in case after case in which the defendant is eligible for the death penalty, why the prosecutor seeks it in one but not the other, or why the jury imposes it in one but not the other. That is the definition of arbitrary that the Supreme Court had in mind back in Furman. Austin Sarat: I think that Justice Blackmun was right -- the problems with the death penalty cannot be remedied; we cannot have a punishment which is individualized and yet one which is consistent. In the end I don't think that the structure of capital punishment can be brought within the Constitution. Editor: For the most part, juries play no role in criminal sentencing, except in death penalty cases where our system of justice has created a "people's voice" to legitimize or reach better decisions on life and death. Would we better off if only judges decided the life or death question? Can judges be more easily constrained by the rule of law and structured guidelines than twelve citizens? James Acker: I don't think we would be better off [if only judges decided], because any advances that might be made in achieving greater consistency through judge sentencing would be more than offset by sacrificing the collective sentiment of the jury about the justice of a life or death sentence. Notwithstanding the imperfections of the jury system, and the capital jury in particular, I remain convinced that juries are to be preferred over judges in rendering decisions that have the moral dimension that is at the heart of capital sentencing decisions. Reliance on juries might contribute to inconsistencies in life/death sentencing decisions, but my guess is that the greater consistency through reliance on judicial sentencing might result in more death sentences. That more death sentences would be imposed does not prove that those sentences would be unjust. But since there is no agreement on what justice demands in this context, I would rather trust my lot to twelve people tried and true. Maybe the optimal combination would be to give judges a one-way corrective power; they could reduce jury death sentences to life if they perceived improper considerations motivating the sentence, but they would not be empowered to override a jury's decision to impose a life sentence. I would prefer to err on the side of erroneous exercises of mercy than arbitrary sentences of death. Leigh Bienen: I am in agreement with Acker. Judges have always been subject to these [electoral and political] pressures, which is why juries were conceived of to begin with. I notice the trend in the legislatures is towards more judicial control over death sentencing. The purpose behind these enactments, as I see it, is to increase the number of death sentences and make legislators feel that they are being "tough on crime." But if you believe, as I do, that disparities are inevitable, what is the benefit of having more death sentences and executions? I don't think the criminal justice system would benefit from more executions, more death sentences, more people on death row, or more media attention or catering to the public's hunger for sensational news about death sentences and executions. Editor: There seems to be some consensus that the application of the death penalty is still highly arbitrary. If so, what can be accomplished by the American Bar Association's recent (February 1997) and highly publicized call for a moratorium on executions until greater consistency and fairness can be achieved? (See Leslie Harris article) Shari Diamond: I don't know the history of the ABA's recent resolution, but it wouldn't surprise me if multiple groups within the ABA with differing agendas contributed to it. It would be well-justified, however, if it were based solely on concerns about arbitrariness and/or discrimination. Note that Justice Blackmun initially supported the death penalty in Furman and Gregg, but after a twenty-year struggle "to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor," he gave up, and in Callins v. Collins (1994) declared that he could no longer support the death penalty. James Acker: I haven't had the chance to see the ABA proposal for a moratorium, but given the vast distance that lies between what is "fair" and what the system presently looks like, there certainly is an opportunity to make the system "fairer" or "less arbitrary" than it is now, without altogether eliminating the death penalty. For example, enactment of the Racial Justice Act would help in the policing of race discrimination. Seriously narrowing the range of death-penalty eligible crimes (such as to murders with multiple aggravators) would reduce the opportunity for abuses of discretion. Providing well-qualified and adequately funded attorneys to accused and convicted capital offenders would help, as would insisting on charging guidelines and a system for enforcing those guidelines. James Coleman: The perception that the system lacks fairness is what motivated the ABA to adopt its moratorium resolution. Twenty of the past twenty-four presidents of the ABA supported this resolution. I doubt anyone would argue that these nineteen men and one woman are radical people out to abolish the death penalty. Rather, I think we do our duty as lawyers, when we bring to the public's attention potential problems and concerns about the justice system that might undermine public confidence. John McAdams (Marquette University/Department of Political Science): The ABA's call for a moratorium is simply an appeal to authority. It's been quite obvious in recent years that the internal politics of the ABA has become increasingly dominated by liberal political activists. ABA positions on abortion, affirmative action, family leave, gay rights, and health care make this perfectly obvious. David Baldus: The ABA could contribute to the goal of better understanding the problems of excessiveness, if it would support research designed to assess the scope of the problem and what may be done to ameliorate it. Editor: One factor motivating the ABA moratorium is a concern over executing innocent people due to a lack of procedural safeguards ... Leigh Bienen: There seems to be a new and curious cynicism regarding the execution of the innocent these days. That innocent people will be executed is not given much weight in arguments against capital punishment. There seems to be public acceptance of the fact, perhaps because of the new attention given to assuming the risk and the inevitability of risk for any policy, including seat belts, air bags, cancer and cigarettes, etc. John McAdams: What Bienen describes as "cynicism regarding execution of the innocent" I would regard simply as realism about public policy. There is no such thing as a risk-free public policy. The best evidence supports the view that execution of innocents is extremely rare. Ironically, two scholars who oppose the death penalty have provided this evidence. Bedau and Radelet found, among 7,000 people executed in the United States in the 20th century, 23 people whom they claim to have been innocent, not a number to be taken as the literal truth, given sparse historical records, the need for subjective analysis of data, and their own biases. Spring 1997 Issue Home | The Death Penalty: A Scholarly Forum Arbitrariness and the Death Penalty | Race and the Death Penalty Victims and the Death Penalty | Purposes of the Death Penalty Teaching about the Death Penalty | Conclusion and Participants List Unedited Death Penalty Forum ABA Calls for Moratorium | Policy, Statistics, and Public Opinion Multidisciplinary Teaching about the Death Penalty Links Focus on Law Studies Home | Subscribe to Focus | Questions/Ordering Back Issues