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- Title
Assessing Capriciousness in Capital Cases.
- Authors
Paternoster, Raymond
- Abstract
The article discusses the issue of capriciousness in capital charging decisions. Capriciousness in the capital punishment system is reflected in the amount of unexplained variation in prosecutor's decision-making. To the extent that the outcomes of prosecutors' charging decisions are not fully or reasonably predicted, that is, to the extent that defendants' fates are influenced to some degree by chance or luck, like a lottery. According to the author, the capital charging system should be critically examined to determine if the proper procedures that are relied for presumptively fair outcomes are being strictly adhered to. In the capital charging system defendants not only must have access to fair procedures but also the fair procedures must be actually implemented. If fair procedures are available to some but not all defendants, the system may be condemned as arbitrary. It may be arbitrary in both senses, discriminatory if fair procedures are systematically denied a particular group, and capricious if access to fair procedures is determined by luck. One very critical component of fair capital charging procedures, access to quality counsel, may be susceptible to charges of both kinds of arbitrariness.
- Subjects
CAPITAL punishment; DECISION making; CRIMINAL law; CRIME; CHANCE; CRIMINAL procedure
- Publication
Law & Society Review, 1993, Vol 27, Issue 1, p111
- ISSN
0023-9216
- Publication type
Article
- DOI
10.2307/3053750