It found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty.

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.

A number of studies in the past three decades have shown that African-American defendants are more likely to be sentenced to death if their victim is white. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.

The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analysed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut similar to those in other death-penalty States is utterly arbitrary.

From 1973, when Connecticut passed a death penalty law, to 2007, 4,686 murders were committed in the State. Of those, 205 were death-eligible cases (capital murders that include the killing of a police officer, murder for hire, murder-rape and murder committed during a kidnapping) that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offences as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

Why was this small group of defendants singled out for death? Did their crimes make them more deserving of execution than all the others?

To get answers, Mr. Donohue designed an “egregiousness” ratings system to compare all 205 cases. It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant's culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case's outcome or the race of the defendant or victim) on a scale from one (least egregious) to three (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from one to five, to ensure that more general reactions could be captured.

The egregiousness scores for those charged with capital murder and those who were not were virtually identical; the nature of the crime bore almost no relationship to how the case came out. Among the 29 who had a death penalty hearing, there is no clear difference in the level of egregiousness for the 17 who got life without parole and the 12 sentenced to death (three eventually had their sentences vacated for various reasons). Among the 32 most awful cases on the four-factor egregiousness scale, only one resulted in a death sentence.

Rather than punish the worst criminals, the Connecticut system, Mr. Donohue found, operates with “arbitrariness and discrimination.” The racial effect, Mr. Donohue finds, is very evident, as is geographic disparity.

In 1972, the Supreme Court in Furman v. Georgia struck down State death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 per cent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 per cent.The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not”. Clearly, Connecticut's system fails this requirement. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere. — New York Times News Service

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