Unguided prosecutors – county by county prosecutorial discretion – is at the heart of the arbitrariness of capital punishment in America, as well as state and local cultures which make coherence in our criminal justice system an impossibility.
Who lives and who dies – among those who have committed horrible acts? Historically – men die, and Black men die much more often. But even if – as in New Jersey – that factor was squeezed out (by Black urban political power) – the results are arbitrary. At a symposium I organized at Seton Hall eight years about the state’s repeal – former Chief Justice Deborah Poritz acknowledgedthat despite rigorous “propotionality review” they had failed to eliminate the arbitrariness of who was sentenced to death who to life in prison. – gwc