Over the past 40 years, Tennessee has imposed sustained death sentences on 86 of the more than 2,500 defendants found guilty of first degree murder; and the State has executed only six of those defendants. How are those few selected? Is Tennessee consistently and reliably sentencing to death only the "worst of the bad"? To answer these questions, we surveyed all of Tennessee's first degree murder cases since 1977, when Tennessee enacted its current capital punishment system. Tennessee's scheme was designed in response to the U.S. Supreme Court's decision in Furman v. Georgia, which held that a capital punishment system operating in an arbitrary manner violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Tennessee's "guided discretion" scheme was purportedly structured to reduce the risk of arbitrariness by limiting and guiding the exercise of sentencing discretion. Our survey results and analysis show, however, that the state's capital punishment system fails to satisfy Furman's command. Rather, it has entrenched the very problems of arbitrariness that Furman sought to eradicate. This article explains the legal background of Tennessee's death sentencing scheme, presents the most salient results of our survey, and examines the various factors that contribute to the arbitrariness of Tennessee's system - including infrequency of application, geographical disparity, timing and natural deaths, error rates, quality of defense representation, prosecutorial discretion and misconduct, defendants' impairments, race, and judicial disparity.

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