The death penalty in practice fell capriciously on a random handful of the condemned.

Evidence

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. [The Constitution] cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. — G. Alan Tarr, Judicial Process and Judicial…, 2002

Categorization

  • DEFINE: Stewart’s ‘cruel and unusual’ is framed as arbitrariness itself rather than painfulness of the punishment.
  • XREF: Connects to Furman v. Georgia and the Eighth Amendment jurisprudence of jury discretion. — connects to: Documented execution failures have eroded public confidence in capital punishment — Albert Bandura, Moral Disengagement: How People Do Harm…, 2100; Death penalty offenses vary so widely they violate proportionality; Even the condemned were left a rational choice among death options — Zygmunt Bauman, Modernity and the Holocaust, 95 (+17 more)
  • SEED: Angle: ‘Struck by Lightning’ — how arbitrariness, not severity, became the constitutional test for cruelty.

Broader Connections