Vanderbilt Law Review

First Page



"Why would a God concerned about justice in a matter of life and death be willing to delegate an absolute power over life and death to such fallible and morally benighted creatures?'"

In the landmark Furman v. Georgia decision, Justice Brennan likened capital punishment to a mere game of chance: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." Although Brennan's argument in Furman focused primarily on disparities across racial lines in death penalty implementation, the notion of arbitrariness applies equally well to our knowledge of the processes, discussions, and maneuvers that take place behind the closed doors of many capital punishment jury rooms. It is practically impossible, and indeed explicitly prohibited by the Rules of Evidence, to delve into jurors' thoughts and considerations pertaining to a particular sentencing decision. This limitation assumes heightened significance when a jury delivers a death penalty sentence, given that it is the "ultimate punishment" and cannot be corrected after implementation."