Two men, similar crime. One sentenced to die and the other gets life in prison.

In upholding Florida’s new death penalty law in 1973, the state Supreme Court made a promise that would be impossible to keep.

It would be applied with scrupulous fairness, guided by pure reason.

The electric chair would be reserved for “the most aggravated and least mitigated murders.”

“The reasons present in one case will reach a similar result to that reached under similar circumstances in another case,” wrote Justice James C. Adkins Jr.

The random discretion that prompted the U.S. Supreme Court to junk all death penalty laws in 1972, in the case of Furman v. Georgia, would now be “controlled and channeled until the sentencing process becomes a matter of reasoned judgment, rather than an exercise in discretion at all.”

That was nonsense. Police, prosecutors, judges and juries would still have almost boundless discretion in charging, trying and convicting murder defendants.

The Florida Supreme Court would inevitably overlook most of that, simply because it would see appeals only from the small fraction of murder convictions resulting in death sentences. It could reduce those to life in prison, but did so without any consistent pattern.

Justice Richard Ervin dissented, arguing that too much discretion remained. He said so again in objecting to the execution of John Spenkelink, who in 1979 became the first person Florida put to death post-Furman. A vagabond prison escapee, he had killed a traveling companion whom he said had assaulted him sexually. He turned down a plea offer that would have spared his life.

“As usual under “discretion,’ it is left to sentencing judges to determine in particular cases who will get death,” Ervin protested. “We know intuitively who will: the poor, the underprivileged, the public defender clients; the blacks and other minority people, the mentally incompetent or those holding unpopular or unorthodox ideologies. The affluent usually escape the death penalty.”

But the U.S. Supreme Court accepted the Florida court’s fallacy.

“It is apparent,” it said in upholding the Florida law, “that the Florida court has undertaken responsibility to perform its function of death sentence review with a maximum of rationality and consistency.”

Florida Justice Joseph W. Hatchett Jr., appointed after the court upheld the law, saw through the beguiling fiction.

The inability to compare who got death sentences with who got life sentences, he wrote in a 1976 dissent, “deprives this Court of the opportunity to determine whether death is being imposed evenhandedly.” It would be “the breeding grounds for all of the horrors” that the U.S. Supreme Court condemned in Furman v. Georgia.

After leaving the court, former Justice Arthur J. England Jr., told the New York Times that it was “impossible” for the court to establish and apply reasonable standards.

The disparities began to pile up. One of them vividly fulfilled Ervin’s prediction.

Steven Wayne Benson, a Naples resident, was convicted of planting pipe bombs that killed his mother and brother and seriously wounded his sister. The motive was money; he was about to be disinherited. At the end of his trial in 1985, the jury split 6-6 on whether to recommend death or life in prison. The judge opted for life. The law did not allow the state to appeal that.

Benson was murdered in prison in 2015. The inmate accused of killing him was acquitted.

Since 2016, Florida law has required a unanimous death recommendation from the jury to put a defendant to death. The judge can impose life instead. But police, prosecutors, trial judges and juries still have discretion to influence how the cases are charged and tried.

Now, a new and fiercely conservative majority of justices has repudiated the obligation the court assumed in 1973 to conduct proportionality review — whether execution would be too severe in comparison to other cases — of death sentences. If they find something legally wrong with a sentence, they may order a resentencing trial, but they won’t act on their own to reduce it even if it appears to be too harsh. That policy, decreed over the passionate dissent of Justice Jorge Labarga, has erased the original justification for upholding the 1972 law.

The majority’s rationale was that the U.S. Supreme Court does not require proportionality review, having said so in a case from California.

The court has ruled against death row inmates in 56 of the most recent 58 cases it has heard. Most of those have involved second or subsequent appeals, raising issues such as newly discovered evidence that hadn’t been heard originally.

Comparable defendants are still treated differently.

James Dailey was convicted of a rape-murder in Pinellas County. Robert DuBoise was convicted of similar charges in Hillsborough County. Both were sentenced to death. There were no eyewitnesses and no physical evidence except what a dentist opined were DuBoise’s bite marks on the victim’s body. To convict them, prosecutors relied on dubious jailhouse informants — “snitches” in prison parlance — who claimed that the defendants had confessed to them.

DuBoise is free, totally exonerated, while Dailey remains on death row, having lost multiple appeals.

DuBoise’s jury had recommended life. Circuit Judge Harry Coe, whose nickname was “Hanging Harry,” imposed death instead. On direct appeal, the Supreme Court took DuBoise off death row by reducing his sentence to life. The vote was 4-3.

Three years later, however, it merely sent

Dailey’s case back to the trial court for a new sentencing hearing at which he was condemned again. The Supreme Court let the second sentence stand. Dailey’s co-defendant, who was sentenced to life, had been telling people he committed the crime alone, but has refused to say so under oath in court.

Two men, one crime. One is sentenced to die, the other gets life in prison. That’s as disparate as disparity can get.

DuBoise remained in prison for 32 more years. Then, last year, a conviction review unit established by Andrew Warren, the new state attorney in Hillsborough County, concluded that he wasn’t guilty. The review found that the snitch had been rewarded with a reduced sentence for his own crimes. The supposed bite marks weren’t bite marks at all. The dentist who had said they were would no longer testify that way. A belated DNA test of semen found in the victim excluded DuBoise as the source.

The courts, including Florida’s, are primed to uphold convictions. They have a fixation with “finality.” Once they’ve made up their minds, that’s that. For an innocent person who has lost every state and federal appeal, the last resort in Florida is a conviction review unit. But such units are left to the discretion of Florida’s prosecutors, only five of whom have seen the need for them.

That’s another example of how discretion tilts the scales of justice. DuBoise had the benefit of a conviction review unit. Dailey didn’t.

The need is overwhelming everywhere. So is the evidence for repealing the death penalty.