In practice, the death penalty does not single out the worst offenders. Rather, it selects an arbitrary group based on such irrational factors as the quality of the defense counsel, the county in which the crime was committed, or the race of the defendant or victim.
Almost all defendants facing the death penalty cannot afford their own attorney. Hence, they are dependent on the quality of the lawyers assigned by the state, many of whom lack experience in capital cases or are so underpaid that they fail to investigate the case properly. A poorly represented defendant is much more likely to be convicted and given a death sentence.
With respect to race, studies have repeatedly shown that a death sentence is far more likely where a white person is murdered than where a black person is murdered. The death penalty is racially divisive because it appears to count white lives as more valuable than black lives. Since the death penalty was reinstated in 1976, 202 black defendants have been executed for the murder of a white victim, while only 12 white defendants have been executed for the murder of a black victim. Such racial disparities have existed over the history of the death penalty and appear to be largely intractable.
It is arbitrary when someone in one county
or state receives the death penalty, but someone who commits a comparable
crime in another county or state is given a life sentence. Prosecutors
have enormous discretion about when to seek the death penalty and when
to settle for a plea bargain. Often those who can only afford a minimal
defense are selected for the death penalty. Until race and other arbitrary
factors, like economics and geography, can be eliminated as a determinant
of who lives and who dies, the death penalty must not be used.