Death in the Hands of Chance: Why Judges Cannot be Trusted to Sentence Death

Etan Zeller Maclean (PPS ‘24)

Etan Zeller Maclean (PPS ‘24)
Etan Zeller Maclean (PPS ‘24)

ne study by two Louisiana State University professors titled “Emotional Judges and Unlucky Juveniles” exposes an almost laughable, yet dark reality of the American justice system. It looks at the correlation between the performance of judges’ favorite football teams and the harshness of their sentencing. Sure enough, they found that when a judges preferred football team lost, inmates were behind bars for longer. Oh and, surprise, they also handed harsher sentences to black defendants.

My point, though, is to underline the variability of human decision regarding the death penalty. Proponents of capital punishment support taking murderers off the streets and handing just punishment to the most heinous criminals. I am not writing to oppose this. In a perfect world, this would be attainable. But this is not a perfect world, and humans are far from perfect. Instead, I believe the death penalty should be eliminated because of the inevitable fallibility of those who hand it down.

The most prominent inconsistency of death penalty convictions involves racial bias. Inaccurate witness testimonies are well-known to be biased, as “42 percent of wrongful convictions based on misidentifications are cross-racial misidentifications.” As empirical scientific evidence has become standard over time, the room for error lies mostly in the judges’ hands. And, as is to be expected, minorities suffer inequality when it comes to the death penalty. 23 out of 25 studies reviewed by the General Accounting Office in 1990 supported that minorities were more likely to receive a death sentence. Even more shocking is how the victim’s race is more predictive of the sentencing than the perpetrator’s race. Not only were defendants who killed white people four times more likely to be sentenced to death than defendants who killed black people, but they were 17 times more likely to be executed. For both the sentencing and the execution, judges have ruled that white lives are more valuable than black ones.

However, the more subtle source of inconsistency is noise, the variability in decision-making attributed to irrelevant factors. It’s inevitable, yet unacceptable when sentencing people to death. Take this example: in a study asking 200 judges about 16 different cases, they only came to a consensus on three of them. One case had sentences ranging from 8.5 years to a life sentence. This means that one judge could give a death sentence in a case where another would not. This variability is the antithesis of justice. Even more ridiculous correlations have been found between rulings and external factors. A 2011 study found that sentencing was harder before a judge’s lunch break. Even the weather affects rulings, as a study of 200,000 immigrants seeking asylum were less likely to receive it on hot days. As legal scholar Cass Sunstein puts it, “these big moments in people’s lives shouldn’t come down to the temperature.”

And Sunstein is right. Life or death should not be in the hands of an individual susceptible to emotion and variability. Unfortunately for the legal system, every judge faces these same challenges; it’s what makes them human. But in matters of life and death, they are impermissible. The easiest way to ensure the government never kills an innocent citizen is to not kill at all. 20 men with strong evidence for their innocence could have been spared. Yes, 186 prisoners have been exonerated, but this begs the question: how many died and deserved to be free? The heart-wrenching fact is that we will never know.

Now, the dangling question remains: what to do about the death penalty? In North Carolina, there remain 134 inmates on death row. Considering the National Academy of Sciences reports 4.1% of death row inmates are innocent, there could reasonably be up to five innocent inmates incarcerated in Central Prison right now. Whether or not the news cycle is focused on this issue, the best time to make a change is now. The good news is swift action can be taken. Governors can declare moratoriums on the death penalty, just as California governor Gavin Newsom did in 2019. If Governor Roy Cooper were to do the same, he would certifiably disallow the killing of an innocent citizen and promote further discussion for a permanent ban.

Until then, we have to live by the uncomfortable reality that it is impossible for judges to be consistent and fair. What’s even worse is that some people lose their life to the same truth.

Etan Zeller Maclean (PPS ’24) is a Public Policy Undergraduate at Duke University’s Sanford School of Public Policy. This piece was submitted as an op-ed in the Spring ’22 PUBPOL 301 course. This content does not represent the official or unofficial views of the Sanford School, Polis, Duke University, or any entity or individual other than the author.

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