A common objection to the death penalty is that it is “arbitrarily” imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was “cruel and unusual” in the same way that being “struck by lightning” was “cruel and unusual.”
It is thus surprising that the Court and those scholars who push this objection have done so little to articulate a coherent notion of “arbitrariness” against which the Court’s jurisprudence has fallen short. Too often hard issues are avoided by resort to metaphor or slogan (such as Justice Stewart’s lightning or the repeated refrain that we should execute only the “worst of the worst”). Thus critical questions remain unanswered: Can there be any arbitrariness in the imposition of the death penalty? Some scholars appear to believe that any arbitrariness would be impermissible, but the Court has not. And if some arbitrariness is permissible, at what point is there too much arbitrariness—so that it becomes intolerable? And what exactly is wrong with a penalty that is arbitrarily imposed?
I hope to show in this Article that there are different kinds of arbitrariness, some worse than others. Some arbitrariness (“extrinsic arbitrariness”) may be more or less harmless, at least as a normative and constitutional matter. Some arbitrariness, too, may be the inevitable upshot of allowing discretion in various places in the law—discretion which we do not necessarily want to give up. In the case of the kind of arbitrariness that is bad (“intrinsic arbitrariness”) the Court’s death penalty jurisprudence post-Furman has been dedicated to getting rid of it. Those scholars who attack any level of arbitrariness as unacceptable need to say more about not only what they mean by “arbitrary” but how much arbitrariness (if any) would be acceptable. Without good answers to these questions, we may wonder if the objection to “arbitrariness” is actually a stand-in for opposition to the death penalty itself, rather than to how it is applied. At least, this paper concludes that the case for the arbitrariness objection has not yet been made with the strength it has, for too long, been taken to have.
Flanders, Chad, What Makes the Death Penalty Arbitrary? (And Does It Matter if It Is?) (June 1, 2020). Wisconsin Law Review, Vol. 55, 2019, Saint Louis U. Research series 2019-24.