The fundamental flaw in our capital punishment practice is arbitrariness in administration.  We have noted that race is an arbitrary determinant  But the untouchable has been prosecutorial discretion.  The result of that is that a handful of prosecutors seek the death penalty.  County by County disparity prevents like cases from being treated alike.  Leigh Bienen (Northwestern) developed this point comprehensively in her 1988 study for the New Jersey Office of the Public Defender The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion.  The state’s Supreme Court responded with a long term program of proportionality review.  That sincere but failed effort was rigorous but fundamentally flawed by the failure to confront the issue of statewide disparity of outcomes inevitable where each county prosecutor could make his/her own choice of when to seek the death penalty.  Mark Graber at Balkinizaton discusses the case of Richard Glossip, an emblematic example of the dangers of unfettered prosecutorial discretion. – gwc

OTHERWISE: Richard Glossip- likely innocent – faces execution.

by Mark Graber

In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.