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The Champion

March 2019 , Page 47 

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Capital Cases: Does Reliability Still Matter in Death Penalty Cases?

By Randolph M. Fiedler

The best explanation for who gets the death penalty is not the heinousness of the offense, but race and geography.1 Innocent people end up on death row, and even some innocent people are executed.2 If these sound like old problems, it is because they are. The Furman Court noted them; the Gregg Court declared them solved. The Court is, again, acknowledging these problems.3 Scholars, for years now, have suggested that these problems offer new directions for litigation.4 

When the U.S. Supreme Court abolished the death penalty, the problem was an inability to explain who got the death penalty. The five concurrences of Furman shared a concern about the absence of standards for who would get the death penalty.5 The absence of standards left too much discretion. And discretion created random results (at best) or discriminatory results (at worst). The Furman opinions left open that a reliable — or non-random — death penalty would still be constitutional.6 

When, in Gregg and its companion cases

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