Moral Accuracy and 'Wobble' in Capital Sentencing

8 Pages Posted: 4 Feb 2005

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law


The comments that comprise this essay were presented as part of a Symposium, "Toward a Model Death Penalty Code: The Massachusetts Governor's Council Report," that was dedicated to examining the Massachusetts Governor's Council's proposed capital punishment statute. Cognizant of the many problems that have arisen with the death penalty, the Council defined its objective as "the creation of a fair capital punishment statute ... that is as narrowly tailored, and as infallible, as humanly possible."

This essay acknowledges that the Council's proposed reforms constitute a significant improvement over current death penalty statutes, especially in providing far greater safeguards against the possibility of an innocent person being sentenced to death. The essay argues, however, that while "factual accuracy" must be addressed by any effort to provide a "fair capital punishment statute," another accuracy question exists that is just as important in asking whether a capital punishment statute is "fair." This question, which the essay terms "the moral accuracy question," looks at the moral judgment of the jury in imposing the death penalty and asks whether any capital punishment statute can guarantee that a jury's decision to impose a death sentence is morally accurate.

Part of the problem in answering the question, of course, is that, unlike with factual guilt, no DNA test exists to determine whether a jury's moral judgment to impose a death sentence was correct or not. Traditionally, therefore, the legal system has tried to control for moral accuracy by asking whether the death penalty is being applied consistently to similar defendants for similar crimes.

This essay maintains, however, that no matter what reforms are enacted, any capital punishment system inevitably will have "wobble" built into it. That is, certain wild card factors invariably will threaten consistency because they are inherent to any system where a jury is asked to make the moral judgment of whether someone should die. In making this argument, the essay focuses on two particular areas of "wobble": the quality of defense representation and the composition of the capital jury.

The essay concludes, therefore, that as important as the "factual accuracy" question is in deciding whether a death penalty statute is fair, we also must ask the "moral accuracy" question: Given that a capital punishment system will always have some "wobble" built into it, how much inconsistency can we tolerate and still have what we would consider a fair and accurate death penalty?

Suggested Citation

Sundby, Scott E., Moral Accuracy and 'Wobble' in Capital Sentencing. Indiana Law Journal, Vol. 80, Winter 2005. Available at SSRN:

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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