Arbitrariness and the California Death Penalty

Document Type


Department or Administrative Unit

Philosophy and Religious Studies

Publication Date



In this paper, I argue against the substantive claims made by Judge Carney and conclude that the kind of arbitrariness surrounding the death penalty in California does not in fact violate the Eighth Amendment. I explain why delays in administering the death penalty do not undermine the appeal to either deterrence or retribution, and I argue that the death penalty is not arbitrarily enforced in a morally or legally objectionable sense. The death penalty in California is not cruel and unusual, at least not for the reasons that Judge Carney gives. I suggest at the end of the paper that other problems, including concerns about time on death row during the appeals process, provide better reasons for opposing the death penalty on both constitutional and moral grounds. Thus, death penalty abolitionists would do better not to repeat the argument regarding delays in the post-conviction process that forms the basis of Jones v. Chappell.


This article was originally published in Ohio State Journal of Criminal Law. The full-text article from the publisher can be found here.


Ohio State Journal of Criminal Law