New York Times Scribe: ‘The Random Horror Of The Death Penalty’

Lincoln Caplan, a member of the The New York Times Editorial Board, writes that Connecticut’s death penalty should sleep with the fishes. Check out his column:

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.

A number of studies in the last three decades have shown that black defendants are more likely to be sentenced to death if their victim is white rather than black. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.

The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analyzed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut–similar to those in other death-penalty states–is utterly arbitrary and discriminatory.

From 1973, when Connecticut passed a death penalty law, to 2007, 4,686 murders were committed in the state. Of those, 205 were death-eligible cases (capital murders that include the killing of a police officer, murder for hire, murder-rape and murder committed during a kidnapping) that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

Why was this small group of defendants singled out for death? Did their crimes make them more deserving of execution than all the others?

To get answers, Professor Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence.

Rather than punish the worst criminals, the Connecticut system, Professor Donohue found, operates with “arbitrariness and discrimination.” The racial effect is very evident (minority defendants with white victims were far more likely to be sentenced to death than others), as is geographic disparity. In the city of Waterbury, a death-eligible killer was at least seven times as likely to be sentenced to death as in the rest of the state.

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare–and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application–among the thousands of murder cases a year–is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.



  1. An important new study based on capital cases in Connecticut provides powerful evidence death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.
    This is from the article above. And he is right. The two pieces of crap who killed the Petit family deserve to die. However, the piece of crap who killed the Donnellys, and before that by a couple of months a jeweler on Long Island, will spend the rest of his miserable days in jail. In neither case was there any doubt of guilt or heinousness.

  2. This brilliant study further demonstrates the death penalty should never be imposed. The absolute of an imposed death penalty ignores the factor of error. When we deal with ‘beyond reasonable doubt’ as the standard, doubt remains nonetheless. So long as convicts sentenced to death are released due to new evidence or further advancements in the technology of evidence evaluation, mankind cannot impose upon anyone a sentence of death. Surely the hideous and heinous manner in which the family in Cheshire were murdered incited public opinion to nearly demand the two perpetrators be put to death. I am satisfied both committed this terrible crime but must suggest their penalty of death is too severe as is any penalty of death. Removing these cretins from the streets with no hope of parole is sufficient penalty.

  3. Ah yahooy, you hit the rub: “with no hope of parole.”

    The people opposed to the death penalty keep on recycling reasons to let people out of jail who clearly should die in jail. Without the option of state-sponsored homicide, the public is relatively defenseless from feral humans and sappy “human rights” advocates. The death penalty provides a nice fall-back position. As in:

    “Don’t want to die? Fine. Sign here. It says you agree to life without parole. That’s the last thing you do with your free will until you die.”

  4. I’m reading a novel that describes the day-to-day routine of prisoners in a super maximum security jail in Florence Colorado. The worst of the worst it explains are housed at this facility, none with any hope of ever seeing the return of their liberty. The prisoners are locked up in a small room for 23 of 24 hours a day. Weather permitting, they go outside for 1 hour in a container that resembles a dog run. They are permitted a shower every other day. They eat all of their meals alone and have no familiar contact with humans. This they get to do for the rest of their lives with absolutely no hope of doing anything different. At Christmas, the meal is fancier. They still eat alone. Sounds like suitable punishment for even the most egregious of criminals. I’d rather see a murderer suffer isolation than see an innocent person put to death.


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