The Death of Fairness: The Arbitrary and Capricious Imposition of the Death Penalty in the 1980’s


A popular misconception about capital punishment is the belief that our legal system guarantees the fair imposition of the death penalty. The Supreme Court has fostered this belief.1 After holding prior death penalty laws unconstitutional in 1972, in large part because capital punishment was being imposed arbitrarily and capriciously, the Court upheld new death penalty laws in 1976. The Justices who cast the crucial votes did so on the basis that the new laws ensured fairness and objectivity in the imposition of capital punishment. Indeed, from reading subsequent Supreme Court pronouncements, one could readily conclude that death row inmates are abusing this fair system by using a large cadre of attorneys to present an endless series of clearly frivolous arguments.

Until early 1983, I held such beliefs based on the court decisions and articles I had read. Although I was generally opposed to capital punishment because I did not believe it to be an effective deterrent, I felt that at least it finally was being administered in a relatively fair manner.

Near the end of 1982, the large law firm for which I worked agreed to let me spend a substantial amount of my time representing indigent clients. In early 1983, I contacted the NAACP Legal Defense and Education Fund to volunteer my services. I expected to be assigned to an employment or housing discrimination case. To my surprise, the Fund’s Director-Counsel said that I would be most useful by representing clients on death row. This statement was inconsistent with my impression that death row inmates had more than enough lawyers who were clogging the courts with repetitious, losing arguments. I was also incredulous that someone with no criminal trial experience and barely any criminal appellate experience could be of great help to defendants on death row.

As of this writing, I have represented seven death row inmates and written amicus briefs in an eighth case. My experiences over the last four years – which have ranged from a victory in the United States Supreme Court to the execution of a client – have left me shaken by the inability of our legal system to treat fairly the indigent defendants accused of capital crimes. I have been amazed to find an extreme lack of fairness in every stage of death sentence cases and at least one fundamentally unfair aspect to every capital case I have handled.

Unfortunately, I have learned that my cases are typical of capital punishment cases in the 1980s. Many of the illustrative examples cited in this article are from cases I have handled, and were only uncovered during my work thereon. I became aware of many other examples through legal research for my cases and meetings with experienced death penalty defense attorneys.These attorneys uniformly maintain that, if one delves deeply enough into a capital case, one is likely to discover one or more of the types of egregious problems described below.

This article discusses each stage of a death sentence case. I describe both the unfair practices unique to death penalty cases and the unfair aspects of our criminal justice system that have their most devastating effects in capital cases.These descriptions show that indigent death row inmates, far from regularly abusing the legal system, are all too frequently its victims.

Suggested Reading

Avi Frey∞ I. Introduction II. Mitigation A. Supreme Court Law B. Defense Practice III. Free Will vs. Determinism IV. Determinist Mitigation: The Substance Focus the Investigation Assess—and Reassess—Investigative Progress Utilize the Science of the Brain Supplement Voir Dire Frontload Determinist