The Death Penalty is Extremely Arbitrary

Geographic Arbitrariness
In examining where the death penalty has been used since its reinstatement in 1976 it might be surprising to realize that only 2% of the counties in the United States have accounted for most of the executions, while 85% of the U.S. counties have not had anyone executed in more than fifty years (DPIC, Executions by State). 

Since 1976 the  Northeast has virtually eliminated the death penalty, executing only 4, less than 1/3 of 1% of those executed.the Mid-West as executed only 6% of those executed, the West has executed 12%, but the South has executed 82% of those executed since the death penalty was reinstated in 1976.  

Florida has executed more people (97) since 1976 than all the Western and Northeastern states combined (89) (DPIC, Executions by State).

 Culpability Arbitrariness
There are frequently multiple offenders in a murder, and it is often the least culpable offender who receives a death sentence resulting in ‘culpability arbitrariness’. 

Offenders with a prior record and experience in the criminal justice system may quickly work out a plea bargain with the prosecutor by casting most of the blame on a less experienced offender who played no role or a minor role in the crime.  In Florida, an ex-con (Walter Rhodes) killed two police officers but when captured said two people traveling with him (Jesse Tafero and Sonia Jacobs) did the killing.  Tafero and Jacobs received the death penalty and Rhodes was released on parole after 18 years.  Tafero was executed and Jacobs was later released after evidence of her innocence emerged (Ko, Michael & Ian Lth, 2003). 

In Arizona, Patrick Bearup was the only one of four defendants in an Arizona case to receive the death penalty, even though he was not directly involved in killing the victim and was clearly the least culpable.  The other three defendants, one of whom instigated the offense, another who beat the victim with a baseball bat, and a third who shot the victim, were all given plea bargains.  Two of these participants could be released soon.  A judge who reviewed this case criticized the prosecutor for pursuing the death penalty against a man who “even under the state’s theory did not cause the physical death” of the victim, however, the judge did not overturn the death sentence and Bearup is still on death row awaiting execution (Lemons, 2010; Santos, 2013). 

Prosecutorial Arbitrariness
Political forms of arbitrariness can be found at all levels of the criminal justice system.  Prosecutorial arbitrariness is a significant form of arbitrariness and sometimes overlaps with geographic arbitrariness.  In 2012 former United States Supreme Court Justice John Paul Stevens said,

Arbitrariness in the imposition of the death penalty is exactly the type of thing the Constitution prohibits…. the random or capricious imposition of the penalty, (is) akin to the risk of being struck by lightning. Today one of the sources of such arbitrariness is the decision of state prosecutors – which is not subject to review – to seek a sentence of death. It …may be influenced by the prosecutor’s estimate of the impact of his decision on his chances for reelection or for election to higher office (New York Review of Books, 2012).

John Donahue produced a comprehensive and statistically sophisticated report examining the arbitrary and discriminatory manner in which capital punishment had been applied in Connecticut (Donahue, 2013).  The findings of this study were instrumental in the Connecticut legislature abolishing the death penalty in 2012.  Donahue says,

the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy…. (The) death penalty regime does not select from the class of death-eligible defendants those most deserving of execution.  At best, the Connecticut system haphazardly singles out a handful for execution …. arbitrariness and discrimination are defining features of the state’s capital punishment regime” (Donahue, 2013, p.1-3).  

Defendants in Waterbury were much more likely to receive the death penalty than comparable defendants in any other part of the state.     

Fiscal Arbitrariness
Geographic arbitrariness and prosecutorial arbitrariness are interrelated, and in small rural counties a third factor, ‘fiscal arbitrariness’ may also be involved.  Prosecutors in these small counties are reluctant to admit that costs affect their decisions about the use of capital punishment, perhaps because of the belief that ‘you can’t put a price on justice’, but the reality is that one death penalty case, by itself, can bankrupt most small rural counties (Chammah, 2014).  James Farren, the District Attorney of Randall County, Texas recently said, “While … justice is not for sale, if I bankrupt the county, and we simply don’t have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?” (Chammah, 2014, p. 2). 

 Gubernatorial Arbitrariness
The Governor plays a major role in both the selection of the people to be executed and when they are to be executed.  The Governor is also the primary decision-maker in the clemency and commutation process which can prevent an execution even after an execution date has been set.  Kubick and Moran studied the relationship between gubernatorial elections and executions in death penalty states controlling for a wide range of variables.  They found that states were 25% more likely to conduct executions in gubernatorial election years than in other years of the gubernatorial cycle.  “Taken together, our results indicate that election-year political considerations influence both the timing and racial composition of executions” (Kubick and Moran, 2003, p. 24).

An example of how politics might affect the clemency process is found in Florida. Bob Graham became governor of Florida in 1979.  In Graham’s first term in office there were six cases considered for execution.  Five of the six (83%) were granted clemency and their sentences were commuted to life in prison and one of the six (17%) was executed. 

Three reasons were given for the five commutations: 

  • one of the five cases that were granted clemency was commuted because of possible innocence;
  • three were commuted because the death sentence was disproportionate in comparison to the sentences of the co-defendants in the case; and
  • one was commuted because the sentence was too harsh for the crime committed (DPIC, Clemency).

These are all logical and legitimate reasons why a governor might commute a death sentence to a sentence of life without the possibility of parole (LWOP). However, the one person executed (John Spenkelink, the first non-volunteer executed in the U.S. after the Gregg decision) would clearly have qualified for a commutation under the category of ‘the sentence was too harsh for the crime committed” because “Spenkelink had been offered a chance to admit to second-degree murder and to receive a life-in-prison sentence, but he refused to do so” (Clark County Prosecutor, n.d.).  Spenkelink’s last words prior to his execution speak to an important point to be discussed a little later.  He said just before the switch was thrown, “Capital punishment — them without the capital get the punishment”  (Clark County Prosecutor, n.d.)

In Graham’s second term as governor one sentence was commuted early in the term based on possible innocence, but a total of 15 people were executed in this four-year term.  If 83% of the cases were granted clemency during the first four years by Governor Graham using the three reasons given, and one was granted early in his second term, one might ask what reasons were given for granting clemency by all of the other governors of Florida in the 32 years since Graham left office?  The answer is easy because it is the same for all of the other governors, – NONE!  (DPIC, Executions by State; DPIC, Clemency).  

In total, 95 people have been executed in Florida since anyone was granted clemency, although six out of the first eight considered after the Gregg decision had their sentences commuted. 

One might argue that the last 95 cases were completely different from the first eight, and these 95 cases really were the ‘worst of the worst’, but to a statistician the probability of that occurring would be laughable.

Jury Arbitrariness
Jurors may be arbitrary in their decisions for any kind of criminal or civil trial, but life and death decisions are even more arbitrary because of the ‘death-qualification’ process. In capital cases two separate trials are held, the first to determine guilt and the second to determine the sentence.  Unfortunately, the same jurors are involved in both trials.  Because of this, juries in capital cases go through a special selection process to see if they are willing to give a death sentence if the defendant is found guilty in the first trial.  This is once again related to prosecutorial arbitrariness.  Prosecutors have had the option of removing a juror for cause if they were opposed to the death penalty for a long time but now the selection process is more involved and more important. 

An elaborate study by Cowan, et al examined the impact of death-qualification using a group of 288 adults who met the qualifications for jury service before a Witherspoon exclusion.  After watching a video about a trial based on a real case each individual completed a ballot indicating what his or her decision in the case would be.  In the death qualified group 78% voted guilty to some degree of murder compared to 53% of the Witherspoon excludable group who voted guilty, a difference of 25% between the two groups (Cowan et al, 1984). 

This suggests that 25% more people would be found guilty by a death-qualified jury than a non-death qualified jury indicating that many innocent people may be on death row and potentially executed because of the jury selection process.

Robert Bohm reviewed the large body of research on death-qualified juries and how they affected death penalty cases and summarized the findings from this research as follows:

Research shows that death-qualified jurors are less concerned with due process and more inclined to believe the prosecution than are excludable jurors.  Death-qualified jurors … have more misconceptions about the death penalty and the death-sentencing process… Death-qualified jurors are more likely to believe that the focus of the penalty phase of a bifurcated trial should be only on the nature of the crime rather than mitigation, and (they) are more likely to believe that the death penalty deters murder.  (Death-qualified jurors) are less likely to believe that innocent people are convicted of capital crimes, that the death penalty is unfair to minorities, and that life without parole really means that a prisoner will not be released from prison.  Most troublesome, death-qualified jurors have been found to be more conviction prone” (Bohm 2012, pp. 48-49).

In other words, the research indicates that the death-qualified jury stacks the deck in favor of conviction, and execution, before the first piece of evidence is presented.

Judicial Arbitrariness
While judges can be arbitrary in their individual death penalty sentences, to find an unusual type of judicial arbitrariness in the activities of the United States Court of Appeals can be somewhat disconcerting.  Apparently, even federal judges with lifetime appointments appear to be affected by politics in making death penalty decisions in the appeal process.  An examination by Horn (2007) of the decisions of the U.S. Court of Appeals for the Sixth Circuit on death penalty appeal cases found that these judges voted differently depending on which president had appointed them.  Randomly selected three-judge panels of the Court of Appeals normally decide death penalty appeals brought before the court. Sixteen judges are eligible to sit on these three-member panels, with nine Republican and seven Democrat appointees at the time of this study (Horn, 2007). 

The study found that 75% of the Democrat appointed judges voted in favor of the defendant whereas 15% of the Republican appointed judges did so. A defendant who gets a panel with two of the three judges appointed by a Republican president has a far greater chance of being executed than one with two members who were appointed by a Democrat president.

If, by the luck of the draw, the panel is made up of three Republican appointees or three Democrat appointees the outcome appears to be a virtual certainty. 

Nathaniel Jones, a retired U.S. 6th Circuit Court judge said, “It’s a roll of the dice. When I look at a lineup of a panel in this kind of case, you can almost go to the bank on what the result is going to be” (Horn, 2007, pp. 2-3).  Arthur Hellman, a University of Pittsburgh law professor said, “It looks very much like a lottery.  Literally, if someone lives or dies depends on the panel they get” (Horn 2007, p. 3).  Clearly ‘luck’, rather than the merits of the case. determines who will live or die under these circumstances.

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