(Furman v. Georgia, 408 U.S. 238) Since .
that time 38 states have passed new legislation of guided discretion. In 1976 the Supreme Court ruled that because of these new capital punishment statutes: " the death penalty does not invariably violate the Constitution." The new laws set out to improve arbitrariness and discrimination by: 1. Limiting the range of cases for which prosecutors could seek the death penalty and 2. Requiring a two-stage trial procedure of determining guilt or innocence first, followed by a sentencing trial. (2) Unfortunately, these new laws have done little to achieve consistency. Of the 38 states that allow capital punishment very few use capital punishment regularly. Six states conduct 70% of all executions. Numerous studies have documented arbitrariness involving the influence of race. (3).
In the book, Equal Justice and the Death Penalty, the authors have done a very comprehensive legal and empirical analysis of capital punishment statistics during the periods between Furman v. Georgia (1972) to McCleskey v. Kemp (1987); they have found that: "prosecutorial discretion continues to dominate the system and that only a small portion of the death-eligible cases actually result in a death sentence." (4).
Some proponents of the death penalty claim that if only some criminals are executed that is better than none. Ernest van den Haag says, "Maldistribution of any punishment among those who deserve it is irrelevant to its justice or morality." adding, "Justice is independent of distributional inequalities."(5) This is wrong according to the Fourteenth Amendment of our Constitution. We need to consider that while disparities exist throughout the criminal justice system, the seriousness of execution warrants intolerance to distributional inequalities. .
2. Deterrence.
Perhaps capital punishment could be justified if it was shown that it would deter murder. A sound principle would be to do what you could to reduce the number of innocent people being murdered.