Doug Berman makes a good point I haven’t really considered before:

Further, America’s sentencing laws each year subjects only a few dozen aggravated murderers in a few states to the real prospect of a death sentence and execution.  And those aggravated murderers typically will face death as a punishment only if and when the victim’s family, and a set of prosecutors, and a set of jurors,and a set of judges all independently decide that death is a fair and fitting punishment.  Asserting that “discrimination and arbitrariness [and] the hallmarks of the death penalty” fails to acknowledge that (1) only a small number of aggravated murderers are even eligible for a death sentence, and (2) lots of victims and prosecutors and juries spare most aggravated murderers from actually receiving a death sentence, and (3) lots of judges and executive officials spare the most of those sentenced to death from actually getting executed.

Meanwhile, America’s sentencing laws each year subject thousands of lesser offenders to LWOP or functionalLWOP sentences (six years ago the US lifer count was over 130,000, but that included folks serving life with parole).  And often it merely takes one charging decision by a lone prosecutor or one sentencing decision by a lone trial judge to forever extinguish the chance for many lesser offenders to ever have even a chance to regain their liberty before dying in prison.  Further, there are strong reasons to fear that wrongful convictions, racial and economic and geographic biases, and ineffective lawyering are far bigger problems for the huge numbers facingLWOP than for the relatively tiny number facing death sentences.  Moreover, while SCOTUS rulings have ensured that no juvenile or mentally retarded aggravated murderers are on death row, there are still thousandsof juvenile offenders and probably even more mentally retarded offenders serving LWOP sentences throughout the United States (some of whom likely are wrongfully convicted and most of whom likely suffered from racial, economic and geographic biases and ineffective lawyering).