NCJ Number
93762
Journal
Journal of Criminal Law and Criminology Volume: 74 Issue: 3 Dated: (Fall 1983) Pages: 1067-1100
Date Published
1983
Length
34 pages
Annotation
This essay analyzes the decisions and actions of persons involved at four stages in the procedural history of potentially capital cases.
Abstract
These stages are the prosecutor's discretionary decision to bring charges and to go to trial, the allocation and effectiveness of defense services, the decisions to seek and to impose the death sentence on convicted offenders, and the proportionality review of death sentences by state appellate courts. The evidence of arbitrariness and discrimination throughout the procedures of potentially capital cases in this study is qualitatively more than a statistical demonstration that sentencing practices of certain States have failed to meet the 'Furman' standard. Beyond this, the arbitrariness is shown to be manifold in its links to race, location within a State, and other personal, situational, and social influences; pervasive in its presence at various decision points in the handling of capital cases; intractable under different kinds of statutes in different States; and replicated in different kinds of studies using different kinds of data. The study indicates that prosecutors, defense attorneys, and judges, as well as jurors become agents of both systematic and unsystematic arbitrariness in determining whether a defendant is ultimately sentenced to death. The evidence further confirms the view that arbitrariness is inherent in the use of capital punishment, because where death is available as punishment, it will be used in ways that reflect dominant community sentiments and that override standards of evenhanded justice, whatever form the capital statutes may take. So far, the Federal courts,, especially the Court of Appeals for the Fifth Circuit, have taken the narrow view that arbitrariness must be demonstrated strictly and specifically in sentencing and that statistical evidence is irrelevant or insufficient, because it does not strictly focus on sentencing or control for conceivably confounding factors; however, it is cynical to suppose that the U.S. Supreme Court in 'Furman' was concerned only with the arbitrariness and biases of jurors while granting to the regular participants in the criminal justice process the privilege of caprice and systematic bias. Tabular data and 83 footnotes are provided.