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Assessing Capriciousness in Capital Cases

Published online by Cambridge University Press:  02 April 2024

Raymond Paternoster
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In their article in this symposium Berk, Weiss, and Boger (1993) have presented a unique approach in the examination of the issue of capriciousness in capital charging decisions. They define capriciousness as one of two forms of arbitrariness. One form of arbitrariness, discrimination, concerns the use of inappropriate factors such as the defendant's social class or victim's race. In the second form of arbitrariness, capriciousness, it is not the use of inappropriate factors that is problematic; rather it is the inability to identify the factors that “meaningfully” differentiate the few defendants given a capital charge from the many who could have been charged with a capital crime but were not. Berk and his colleagues only concern themselves with capriciousness.

Type
Symposium: Research on the Death Penalty: Comment
Information
Law & Society Review , Volume 27 , Issue 1 , 1993 , pp. 111 - 123
Copyright
Copyright © 1993 by The Law and Society Association

Footnotes

I would like to thank Daniel Nagin, Douglas Smith, and David Wasserman for reading and commenting on an earlier draft of this comment, as well as the insights of an anonymous reviewer. David Wasserman was also kind enough to supply me with copies of his unpublished manuscripts, which proved to be very helpful in forming my thoughts on these issues.

References

References

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Case Cited

Furman v. Georgia, 408 U.S. 238 (1972).CrossRefGoogle Scholar