In 1972 the U.S. Supreme Court ruled that lower courts must follow consistent standards for death penalty sentencing. This ruling was intended to make the process for imposing the death penalty less subject to discriminatory bias. In the decades since that decision, however, new questions have emerged about whether or not prosecutorial arbitrariness has supplanted sentencing arbitrariness as an area that leaves room for bias.

A 2010 study by Pepperdine University School of Law published in Temple Law Review, “Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions,” surveyed the decision-making process among prosecutors in various states. At the request of a state commission, the authors first surveyed California district attorneys; they also examined data from the other 36 states that have the death penalty.

Important points made in the study include:

• Prosecutors’ capital punishment filing decisions remain marked by local “idiosyncrasies,” suggesting they are not in keeping with the spirit of the Supreme Court’s directive. This means that “the very types of unfairness that the Supreme Court sought to eliminate” may still “infect capital cases.”
• Wide prosecutorial discretion remains because of overly broad criteria. California law, for example, has 22 “special circumstances,” making nearly all premeditated murders potential capital cases.
• The 37 states that have the death penalty have varying numbers and types of “death qualifiers” — circumstances that allow for capital charges. The number varies from a high of 34 in California to 22 in Colorado and Delaware to 12 in Texas, Nebraska, Georgia and Montana.
• During the period 1996 to 2006, Texas led the nation in death sentences with 340; Florida was second with 188. The other states with the highest number of such sentences were: North Carolina, 132; Alabama, 97; Louisiana, 72; South Carolina, 59.
• A 1995 “protocol” issued by the U.S. Department of Justice encouraging uniform standards significantly changed the pattern of death penalty cases in the federal system. In cases where U.S. Attorneys were involved, recommendations for the death penalty by prosecutors dropped almost 75% after 1995.
• Prior to 1995, 75% of the defendants that U.S. Attorneys recommended for the death penalty were African American; after the U.S. Department of Justice protocol, that number fell to 48%.
• This clearer, more centralized Justice Department system for matters of prosecution stands as a “model  for the various state jurisdictions.”

The study’s authors recommend that states should, among other measures, narrow their criteria, increase centralized review and improve record keeping for death penalty cases. Moreover, prosecutors should follow publicly disclosed rules: “Arbitrariness in deciding whether to seek the death penalty may also be curtailed by requiring prosecutors to adhere to an established set of guidelines.”

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