reprieve on the grounds that Bowden's partner had received a prison sentence, and Bowden himself had the mental capacity of a 12-year-old. No one knew which of the two had actually fired the fatal shot. In short, only about one percent of all killers end up on death row. They are not necessarily the worst one percent but the unluckiest. No one knows exactly why they have been selected. The death penalty is, in fact, a type of lottery in which the primary consistency is a pattern of discrimination. Arbitrariness and discrimination happen because the criminal justice process is inherently and necessarily discretionary, leaving room for mercy but also for injustice. Such arbitrariness cannot be eliminated successfully. There are simply too many variables. The quality of legal defense is crucial. One study has suggested that the lawyer's ability to raise or create question of appealable error, more than anything else, determines who will die. Moreover, the judicial process is full of discretionary points where human choices must be made. There are questions of what to charge and what penalty to ask. Both jury and prosecutor are faced with judgments as to which crimes are "especially heinous, atrocious and cruel," and such judgments are necessarily imprecise. Juries have to make judgments on insanity and premeditation. They can always decide in favor of a "lesser included offense" instead of the offense charged, and this latter decision is not reviewable. Decisions of aggravation and mitigation are highly discretionary. The variables cannot be eliminated. We cannot remove discretion and still leave room for mercy. Yet it is impossible to devise precise standards controlling human decisions and actions. When we execute, inevitably we will do so arbitrarily and sometimes mistakenly. Murder victims die arbitrarily and innocently, and the wrong of that needs to be acknowledged. But can that justify such action on the part of a government? Are t...
