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Death Penalty Information Center
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Policy

Arbitrariness

The death penalty is supposed to be reserved for only the worst of the worst crimes. But legally irrelevant factors such as race, geography, and the quality of counsel disproportionately determine who is sentenced to death.

DPI Report: The 2% Death Penalty

DPI Report: The2% Death Penalty

How a Minority of Counties Produce Most Death Cases at Enormous Costs to All

DPI Podcast

DPI Podcast

Authors of Death-Penalty Study Discuss Tennessee’s ​“Death Penalty Lottery”

Overview

A pun­ish­ment that is admin­is­tered in an arbi­trary way — that is, imposed on some indi­vid­u­als but not on oth­ers, with no valid jus­ti­fi­ca­tion for the dif­fer­ence — is uncon­sti­tu­tion­al­ly cru­el, just as an exces­sive­ly harsh pun­ish­ment is cru­el. Arbitrary pun­ish­ments also open the door to racial and oth­er dis­crim­i­na­tion: if the sen­tenc­ing author­i­ty has inad­e­quate guide­lines, prej­u­dice can lead to harsh­er penal­ties for disfavored minorities.

If speed­ers who drove yel­low cars were con­sis­tent­ly tick­et­ed but speed­ers who drove oth­er col­ored cars were not, the appli­ca­tion of the speed­ing law would be con­sid­ered unfair, even if there were no men­tion of a car’s col­or in the law. In a death penal­ty sys­tem in which less than2% of known mur­der­ers are sen­tenced to death, fair­ness requires that those few who are so sen­tenced should be guilty of the most hor­rif­ic crimes or have worse crim­i­nal records than those who are not. A sys­tem in which the like­li­hood of a death sen­tence depends more on the race of the vic­tim or the coun­ty in which the crime was com­mit­ted, rather than on the sever­i­ty of the offense, is also arbitrary.

The Supreme Court struck down all death penal­ty laws in1972 because their appli­ca­tion was arbi­trary. In1976, con­sti­tu­tion­al guide­lines were insti­tut­ed in an attempt to pre­vent such capri­cious­ness in the future.

At Issue

More than forty years of evi­dence strong­ly sug­gests that the Court’s guide­lines have been inef­fec­tive. Irrelevant fac­tors such as race, pover­ty, and geog­ra­phy still seem to deter­mine who is sen­tenced to death. Short of apply­ing the death penal­ty in all mur­der cas­es (a path con­demned by the Supreme Court), it may be impos­si­ble to devise rules that clear­ly delin­eate which crimes and which defen­dants mer­it death and that juries and judges are able to consistently apply.

WhatDPI Offers

DPI pro­vides sta­tis­tics on exe­cu­tions, death sen­tences, and death row that include demo­graph­ic infor­ma­tion on the defen­dant and vic­tim.DPI has also high­light­ed rel­e­vant stud­ies demon­strat­ing the con­tin­ued arbi­trari­ness in the appli­ca­tion of the death penalty.

News & Developments

News

Feb 05, 2026

New Analysis: Why the Death Penalty is Off the Table for Luigi Mangione

On January30, a fed­er­al judge ruled that Luigi Mangione can­not face the death penal­ty in his upcom­ing tri­al for the mur­der of UnitedHealthcareCEO Brian Thompson. She dis­missed two counts from his fed­er­al indict­ment, one of which car­ried the death penal­ty as a poten­tial sen­tence. Described byThe New York Timesas​“a sig­nif­i­cant blow to the Trump administration’s efforts to revive the use of the death penal­ty in fed­er­al cas­es,” this deci­sion inval­i­dates a capital…

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News

Jan 13, 2026

Texas Report Highlights Decline of New Death Sentences and Executions

For decades, Texas per­formed exe­cu­tions at the high­est rate in the coun­try. It has car­ried out the most exe­cu­tions in the mod­ern era, with near­ly five times the num­ber as the next high­est state. However, that trend has changed in recent years, as both the num­ber of new death sen­tences and exe­cu­tions has sig­nif­i­cant­ly declined. The Texas Coalition to Abolish the Death Penalty’s (TCADP)2025 Annual Report exam­ines the dwin­dling use of cap­i­tal pun­ish­ment and the…

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News

Jan 12, 2026

Marking a Decade Since Hurst v. Florida

Today is the ten-year anniver­sary of the U.S. Supreme Court’s deci­sion in Hurst v. Florida. Heralded as a water­shed rul­ing for cap­i­tal defen­dants, Hurst reaf­firmed the prin­ci­ple that the jury alone must find the facts nec­es­sary to con­demn a per­son to die — impli­cat­ing the death sen­tences of hun­dreds of pris­on­ers across three states. The Sixth Amendment right to an impartial jury…

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News

Oct 08, 2025

Upcoming Executions Illustrate Persistent Themes and Concerns Around the Death Penalty

October9,2025UPDATE: On October9,2025, just a week before his sched­uled exe­cu­tion, the Texas Court of Criminal Appeals (CCA) grant­edRobert Robersona stay of exe­cu­tion and remand­ed his case to the dis­trict court for fur­ther con­sid­er­a­tion of his request for relief based upon relief offered in a sim­i­lar case,Ex parte Roark.Like Mr. Roberson’s case,Ex parte Roark**, also involved a con­vic­tion based the now…

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News

Sep 24, 2025

Mangione’s Counsel Challenge Constitutionality of Federal Death Penalty as Arbitrary

In a motion filed September20,2025, attor­neys for Luigi Mangione, indict­ed in the2024 killing of UnitedHealthcareCEO Brian Thompson, have filed a broad chal­lenge to the con­sti­tu­tion­al­i­ty of the fed­er­al death penal­ty, argu­ing that it is applied arbi­trar­i­ly, in vio­la­tion of Fifth Amendment’s due process pro­tec­tions and the Eighth Amendment’s pro­hi­bi­tion on cru­el and unusu­al pun­ish­ments. They are ask­ing the United States District Court in the Southern District…

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The Geographic Arbitrariness of Capital Punishment in the United States

There are clear geographic differences in death penalty usage across the country and within individual states. Even within a state, the death penalty is usually pursued in only a handful of counties, though the expense is often shared by all taxpayers. Fewer than 2% of counties in the U.S. account for more than half of the nation’s death-row population and more than 4/5ths of U.S. counties have no one on death row.

Views from the Bench

Inordinate and unpre­dictable delay has result­ed in a death penal­ty sys­tem in which very few of the hun­dreds of indi­vid­u­als sen­tenced to death have been, or even will be, exe­cut­ed by the State. It has result­ed in a sys­tem in which arbi­trary fac­tors, rather than legit­i­mate ones like the nature of the crime or the date of the death sen­tence, deter­mine whether an indi­vid­ual will actu­al­ly be exe­cut­ed. And it has result­ed in a sys­tem that serves no peno­log­i­cal pur­pose. Such a sys­tem is unconstitutional.

-U.S. District Court Judge Cormac Carney inJones v. Chappell (2014),strik­ing down California’s death penal­ty as uncon­sti­tu­tion­al, reversed by the9th Circuit on procedural grounds

The court returns to the ques­tion it asked at the begin­ning of the opin­ion. Has actu­al expe­ri­ence borne out the promise for a more reli­able sys­tem of cap­i­tal pun­ish­ment expressed in theGreggdeci­sion? The evi­dence pro­duced for the court answers the ques­tion in the neg­a­tive.… The time has sure­ly arrived to rec­og­nize that the reforms intro­duced byGreggand sub­se­quent deci­sions have large­ly failed to rem­e­dy the prob­lems iden­ti­fied inFurman. Institutional author­i­ty to change this body of law is reserved to the Supreme Court. For this rea­son, the tri­al court is required to deny the defense motions relat­ed to the con­sti­tu­tion­al­i­ty of the death penalty.

-U.S. District Court Judge Geoffrey Crawford inU.S. v. Donald Fell (2016)

Renewed Arbitrariness Concerns

Renewed Arbitrariness Concerns

In a 2015 dissent, Justice Breyer expressed serious concerns about the constitutionality of the death penalty

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