Arbitrariness and Discrimination in the Administration of the Death Penalty: A Legal and Empirical Analysis of the Nebraska Experience (1973-1999)

Abstract

Since 1973, Nebraska has had a weighing death penalty system. In this system, the sentencing court finds statutory aggravating and mitigating circumstances and bases its sentencing decision on a weighing of those factors. In Nebraska, judges have the exclusive sentencing authority. This Article presents a legal and empirical analysis of the administration of that system through 1999. Our empirical analysis tracks 185 prosecutions in 175 death-eligible cases that resulted in 89 penalty trials and 29 death sentences, three of which have been executed.

The principal focus of this Article is on arbitrariness and comparative injustice in the administration of the death penalty. As it has evolved since Furman v. Georgia, the legal concept of arbitrariness may refer to one or more of the following features of a death penalty system: (1) discrimination based on illegitimate and suspect factors, such as the race and socioeconomic status of the defendant and victim; (2) geographic disparities in outcomes; or (3) random, inconsistent, and capricious outcomes.

In addition, the Article focuses on the implications of the Supreme Court's spring 2002 decision regarding the death penalty, Ring v. Arizona, for the future of the Nebraska system. Ring requires the participation of juries in all capital trials, although the scope of that participation, beyond the jury's findings of statutory aggravating circumstances, is currently unclear. Against this background, the Article considers possible reforms of the Nebraska system that will meet the requirements of Ring while preserving the strengths of the Nebraska system that we document in this Article.

Keywords: race, death penalty, Nebraska, discrimination, geography