ABSTRACT
Among marginal justices moved by the arbitrariness issue, some stressed the discriminatory aspects of capital punishment, the tendency of legally irrelevant factors like race and economic status to determine the severity of sentence, while others emphasized the “freakish” nature of the punishment, the fact that it is imposed on a miniscule percentage of murderers who are not obviously more deserving of death than others. Both legal analysis and empirical studies should undermine our confidence that the legal system sorts out those who deserve to die from those who do not in a nonarbitrary manner. If we cannot be confident that those who are executed in fact deserve to die, then we ought not to allow executions to take place at all. Because van den Haag does not distinguish this argument from other versions of the argument from arbitrariness, he simply neglects it.
