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 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.