Arbitrariness and Discrimination under Post-Furman Capital Statutes

Abstract

Drawing on a wide variety of data sources, this study examines arbi trariness and discrimination under capital statutes in Florida, Georgia, Texas, and Ohio, which are responsible for roughly 70 percent of the. death sentences imposed nationwide in the five years following the United States Supreme Court's Furman decision. It finds that there are gross dif ferences in the treatment of potentially capital offenders by race of of fender and victim and by judicial circuits within states. These are (1) inde pendent of aggravating felony-related circumstances, (2) present at both presentencing and sentencing stages of the criminal justice process, (3) uncorrected by the postsentencing appellate review process, (4) unaltered by the form and restrictiveness of capital statutes among states, and (5) remarkably similar to the best documented patterns of differential treat ment by race of offender and victim under pre-Furman capital statutes, now ruled unconstitutional. These findings show that the present system of capital punishment is inconsistent with the constitutional standards of the Furman and Gregg decisions of the United States Supreme Court, but is instead consistent with historically prevailing extralegal influences which compromise and displace the legally prescribed functions of such punishment and are an enduring source of arbitrariness and discrimina tion.