A comparison of retained and appointed counsel in cases of capital murder

We examined the role of counsel as a source of arbitrary and capricious sentencing in cases of capital murder. The method is a reanalysis of the data of Baldus, Woodworth, & Pulaski (1990) on 606 cases of capital murder in Georgia in the 1970s. Controlling for variables describing the character of the defendant and the circumstances of the crime, a death sentence was more likely when defense counsel was appointed rather than retained privately. This was a consequence primarily of the prosecutor's decision to seek a death sentence rather than jury bias in sentencing. Our data support the conclusion that sentencing under the Georgia statute was in the 1970s, and is today to some degree, arbitrary and capricious.