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74 J. Crim. L. & Criminology 659 (1983)
Issue 3

handle is hein.journals/jclc74 and id is 673 raw text is: 0091-4169/83/7403-659
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY                  Vol. 74, No. 3
Copyright 0 1983 by Northwestern University School of Law  Printed in US.A.
In 1976, a divided United States Supreme Court upheld state capi-
tal sentencing laws on the assumption that explicit sentencing guide-
lines, separate sentencing hearings and automatic appellate review of all
death sentences would remove the substantial risk of arbitrariness of
previous capital punishment sentencing schemes.I Eight years later, the
premises supporting the constitutionality of the new laws appear to have
little practical currency. That a set of scholarly contributions from law-
yers, criminologists, and other investigators would uncover flaws in the
operation of the death-case legal system is not surprising; earlier re-
search into the operation of the discretionary death penalty systems
raised significant doubts about the reliability, fairness, and necessity of
capital punishment and contributed to the Court's landmark 1972 deci-
sion in Furman v. Georgia. But both the depth and bite of recent investi-
gations are startling. Discretionary death sentencing was rejected in
Furman for a complex of factors amounting to legal arbitrariness-lack
of evenhandedness, caprice, discrimination, excessiveness. The statutory
schemes approved in 1976 and those adopted thereafter were formu-
lated to avoid unconstitutional arbitrariness in capital sentencing
Rather than attempt a lengthy summary of what follows, we will
let Symposium contributions speak for themselves and point out, only
generally, some of the more salient conclusions.
Though there may have been a shift in the stage of the system at
which arbitrariness occurs, the new laws have not eliminated the dispa-
rate treatment of minority group members. Sentencing standards, evi-
dentiary hearings, and appellate review of lower court death sentences
have neither screened out racial or economic factors in death sentencing
nor reduced to satisfactory levels the system's capacity to produce incon-
sistent and freakish results. Decisions of prosecutors to seek the death
penalty are related to the race of the victim and defendant. Wide geo-
graphical variations in the imposition of the death penalty mean that
the likelihood of receiving the death sentence may depend solely upon
the locus of the trial. Appellate courts have not proven themselves capa-
ble of rectifying inconsistency in trial court death sentencing and indeed
1 See, e.g., Bowers, The Pervasiveness ofArbitrariness andDiscrimination under Post- Furman Cap-
ital Statutes, 74 J. CRIM. L. & CRIMINOLOGY 1067 (1983).

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