UCLA School of Law

The U.S. Supreme Court has identified three types of constitutionally impermissible errors in the administration of capital punishment: arbitrariness, discrimination, and disproportionality. In this essay, I describe an empirically-anchored analytical framework for defining, identifying, and measuring these concepts. I then illustrate the usefulness of the framework by examining prosecutors' death penalty charging decisions in Georgia over an eight-year period. The results strongly suggest that prosecutorial decision-making in Georgia continues to be plagued by the very errors that led the Court to invalidate Georgia's capital punishment system forty years ago.