Arbitrariness

Even after new sentencing guidelines were approved by the Court in Gregg v Georgia in 1976, the death penalty is still being randomly applied to a small number of defendants. There remains a lack of uniformity in the capital punishment system. Some of the most heinous murders do not result in death sentences, while less heinous crimes are punished by death sentences.

Ineffective guidelines and constraints in the capital sentencing process can result in decision-makers falling back on their prejudices about who are the worst kind of criminals or who are the more sympathetic victims. Many factors other than the gravity of the crime or the culpability of the offender appear to affect death sentences, including geography, race, gender, and access to adequate counsel.

GEOGRAPHY
Regional variation in death sentences suggests arbitrariness in application. While we would expect to see some variation from state to state, given that there will be differences in population, crime rates and laws, we would also expect, the law of a particular state to be fairly applied.

A just system ought not to have death sentences concentrated in only one region. However, whether a person receives the death penalty depends heavily on where the crime was committed.About one-quarter of Ohio’s death row inmates come from Hamilton County (Cincinnati), but only 9% of the state’s murders occur there. (R. Willing and G. Fields, Geography of the Death Penalty, USA Today, Dec. 20, 1999).Baltimore City had only one person on Maryland’s death row, but suburban Baltimore County, with one tenth as many murders as the city, had nine times the number on death row. (L. Montgomery, Md. Questioning Local Extremes on Death Penalty, Wash. Post, May 12, 2002).In New York, although upstate counties experience 19% of the state’s homicides, they nonetheless account for 61% of all capital prosecutions. Three counties (out of 62 in the state) accounted for over one-third of all cases in which a death notice was filed. (Capital Punishment in New York State: Statistics from Six Years of Representation, Report from the Capital Defender Office, Sept. 2001 (data through June 30, 2001)).

Studies consistently show that those who kill white victims are much more likely to receive the death penalty than those who kill black victims. Racial disparities in sentencing and executions suggest that race plays a role in the application of the death penalty. In 96% of the states where there have been reviews of race and the death penalty, there was a pattern of either race-of-victim or race-of-defendant discrimination or both. (David Baldus, et al., In The Post-Furman Era: An Empirical And Legal Overview, With Recent Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998)).A report released by the New Jersey Supreme Court found that, "There is unsettling statistical evidence indicating that cases involving killers of white victims are more likely to progress to a penalty phase than cases involving killers of African-American victims." (Asbury Park Press, Aug. 13, 2001).A comprehensive study in North Carolina, based on data collected from court records of 502 murder cases from 1993 to 1997, found that race plays a significant role in who gets the death penalty. In North Carolina, defendants whose victims are white are 3.5 times more likely to be sentenced to death than those with non-white victims. (Prof. Jack Boger and Dr. Isaac Unah, Race and the Death Penalty in North Carolina An Empirical Analysis: 1993-1997, Apr. 16, 2001). Race-of-victim bias in the death penalty has been a persistent problem. In 1990, the U.S. General Accounting Office reviewed the research on this issue and found that in 82% of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving a death sentence, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.

JURY MISPERCEPTIONS
The Capital Jury Project studied more than 1,200 jurors from 14 states. Based on this research, Professors Bowers and Foglia conclude that the constitutionally mandated requirements established to guide juror discretion and to eliminate arbitrary sentencing are not working. The study identified the following constitutional problems:Premature Decision Making - Interviews with jurors found that approximately 50% of those interviewed decided what the penalty should be before the sentencing phase of the trial. This is before they have heard penalty phase evidence or received the instructions on how to make the punishment decision.Bias in Jury Selection - Researchers found that jury selection methods resulted in disproportionately guilt-prone and death-prone juries.Failure to Understand Jury Instructions - The study found that 45% of jurors failed to understand that they were allowed to consider any mitigating evidence during the sentencing phase of the trial. In addition, two-thirds of jurors failed to realize that unanimity was not required for findings of mitigation.Erroneous Beliefs that Death is Required - 44% of jurors said that they believed the death penalty was required if the defendant's conduct was heinous, vile or depraved, and nearly 37% of respondents said that the death penalty was required if the defendant would be dangerous in the future. The Supreme Court has ruled that no state can require the death penalty solely on the grounds that specific aggravating circumstances have been established.Influence of Race - Researchers revealed that the chances of a death sentence in cases with a black defendant and white victim increase when there are five or more white males on the jury, and the chances decrease when there is at least one black male on the jury. These jurors have very different perspectives regarding lingering doubt, defendant remorsefulness, and defendant future dangerousness.Underestimating the Death Penalty Alternative - Early findings of the study found that most jurors grossly underestimated the amount of time a defendant would serve in prison if not sentenced to death, and that the sooner jurors believed (wrongly) a defendant would return to society if not given the death penalty, the more likely they were to vote for death.

William J. Bowers and Wanda D. Foglia, Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing, 39 Crim. L. Bull. 51 (2003).

WORST OF THE WORST?
The death penalty is not necessarily applied to the worst of the worst offenders:
Prosecutors Agree To Life Sentence For Nurse Guilty Murdering 13 Patients
Charles Cullen, a former nurse, escaped the death penalty in an agreement with prosecutors in which he pled guilty to killing 13 hospital patients. (D. Kocieniewski, N.Y. Times, Apr. 30, 2004).

Man Who Admitted To 48 Murders Will Serve Life Sentence In Exchange For Cooperation
In a plea agreement reached with Washington state prosecutors, Gary Ridgway, a Seattle-area man who admitted to 48 murders since 1982, will serve a sentence of life in prison without parole. Prosecutors spared Ridgway from execution in exchange for his cooperation in leading police to the remains of still-missing victims. (Associated Press, Nov. 5, 2003).

Sources:
dpic
amnesty.org/en/death-penalty