Imposing a Cap on Capital Punishment: A Proposal for Minimizing the Arbitrariness of the Death Penalty

69 Pages Posted: 1 Jun 2006 Last revised: 30 Mar 2016

Date Written: May 30, 2006


Over the last three decades, the Supreme Court has established complex procedural safeguards in an effort to reduce the arbitrariness of the death penalty. Despite the Court's considerable efforts however, capital punishment is still imposed in an arbitrary fashion. One reason for the continued arbitrariness is that the Court's efforts have focused almost exclusively on the guilt and sentencing phases of capital trials, while imposing few barriers limiting which capital cases are input into the criminal justice system in the first place. Because there are few legal constraints on the sheer number of cases in which prosecutors can pursue the death penalty, the Government is not under sufficient pressure to choose its capital cases carefully. As a result, the death penalty is sought and meted out in some cases, which though terrible, are no worse than the thousands of other murder cases in which prosecutors pursue only life imprisonment. Moreover, because prosecutors in certain jurisdictions file too many capital cases, the criminal justice system lacks the resources to focus sufficient attention on each one.

This paper argues that the Court would be better served by imposing a cap on the number of death-penalty prosecutions each jurisdiction can bring in a given year. The cap would be based on the number of murders in a given jurisdiction and the national average of death-penalty prosecutions each year. Such a cap would bring outlying jurisdictions into the mainstream, rather than allowing those counties to seek the ultimate punishment in an excessive number of cases. This paper argues that a cap on death-penalty prosecutions would be more likely to reduce the arbitrariness of capital punishment and would be no more activist than the Court's current death-penalty jurisprudence.

Keywords: Capital punishment, death penalty, arbitrariness, prophylactic, cap

Suggested Citation

Gershowitz, Adam M., Imposing a Cap on Capital Punishment: A Proposal for Minimizing the Arbitrariness of the Death Penalty (May 30, 2006). Available at SSRN: or

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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