Disciplining Death: Assessing and Ameliorating Arbitrarines in Capital Charging

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Sherod Thaxton

Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago. According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty. The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital punishment systems, but now the Court routinely minimizes, or outright ignores, social science evidence on the operation of the death penalty. This has led to the growing disjunction between the Court’s rhetoric and the reality of capital punishment. Justice Breyer underscored the Court’s responsibility in holding death penalty systems accountable and called for full briefing on the basic question of the social realities of the administration of capital punishment.
Meaningful death penalty reform, if possible, requires a more prominent role for social science in death penalty decision-making. In this Article, I develop a doctrinally anchored statistical model that carefully disentangles and evaluates questions of arbitrariness, bias, and disproportionality in capital charging. I begin by discussing the Court’s inconsistent efforts to rationalize and regulate capital punishment systems. I then adopt a framework of statistical inference in an effort to provide greater definitional and analytical clarity. Finally, I describe a set of analytical tools uniquely suited for diagnosing capital charging errors that closely aligns with the Court’s conceptualization of unacceptable arbitrariness. I illustrate the usefulness of the model on data involving actual death penalty-eligible defendants from Georgia.
My analysis reveals that death penalty charging practices are highly inconsistent, irrational, and disproportionate, both within and across jurisdictions in Georgia. The Article concludes by explaining how the empirical model might be used to improve accuracy and consistency in capital charging systems through empirically informed front-end charging screening.

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