Arbitrariness and Discrimination in the Administration of the Death Penalty

I N its Furman decision, two of the major problems the Supreme Court found with existing death penalty statutes were that they did not prevent the death penalty from being imposed arbitrarily and in a discriminatory fashion. Former law professor Barry Nakell and statistician Kenneth Hardy provide relevant definitions of the two key terms:

■ Arbitrariness involves the question of whether discretion permits the death penalty to be applied randomly, capriciously, irregularly, or disproportionately among the qualified defendants without any evident regard for the legal criteria designed to determine the selection. Arbitrariness is random.1