Arbitrary Application

To apply the death penalty arbitrarily or capriciously is to administer it randomly. Capital punishment in the United States today is a lottery where an unlucky few death-eligible offenders are executed, while the vast majority of death-eligible offenders are not. Only about 1% of all death–eligible offenders were executed under super due process, and there is no meaningful way to distinguish between the eligible offenders who have been executed and those who have not. One might assume that the few death-eligible offenders who have been executed represent the “worst of the worst,” but the “worst of the worst” sometimes escape execution, while murderers who clearly are not among the “worst of the worst” do not. An example of the first category is serial killer Gary Ridgway, the so-called “Green River Killer,” who, in 2003, admitted to killing 48 women during a span of two decades. Ridgeway was not sentenced to death, but to consecutive LWOP sentences for each murder.

Arbitrariness is also evident in the way the death penalty is applied across jurisdictions and overtime. Thirty-five separate jurisdictions in the United States have capital punishment statutes (33 states, the federal government, and the U.S. military), while 18 jurisdictions do not (17 states and the District of Columbia). So, whether a killer (only murderers have been executed post-Gregg) receives the death penalty depends on the jurisdiction where the death-eligible murder was committed. A murderer who kills his victim in Missouri may be sentenced to death, while a murderer who kills his victim in Illinois—perhaps less than a mile away from the Missouri killing—could not be sentenced to death today, but could have been sentenced to death before 2011—the year Illinois abolished its death penalty. Some people may argue that the preceding example is not evidence of arbitrary application, but, instead, is a function of the United States’ federal system of government. Perhaps. But, the federal system of government cannot explain county-level variation within death penalty states.

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