The Eighth Amendment's "narrowing" requirement for capital punishment eligibility has challenged states since it was recognized in Furman v. Georgia in 1972. This article examines whether California's death penalty scheme complies with this requirement by empirically analyzing 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002. Using a 1,900-case sample, we examine whether California's death penalty statute fails to comply with the Eighth Amendment's narrowing test. Our findings support two conclusions. First, the death-eligibility rate among California homicide cases is the highest in the nation during that period and in the ensuing decade. We find that 95 percent of all first-degree murder convictions and 59 percent of all second-degree murder and voluntary manslaughter convictions were death eligible under California's 2008 statute. Second, a death sentence is imposed in only a small fraction of the death-eligible cases. The California death sentencing rate of 4.3 percent among all death-eligible cases is among the lowest in the nation and over two-thirds lower than the death-sentencing rate in pre-Furman Georgia.

This review collects initiatives and legal decisions designed to mitigate discrimination in pretrial decision making, jury selection, jury unanimity, and jury deliberations. It also reviews initiatives to interrupt implicit racial biases. Among these, Washington's new rule for jury selection stands alone in treating racism as the product of both individual actors’ decisions and long-standing legal structures. Washington's rule shows the limits of recent US Supreme Court decisions addressing discrimination in cases with unusual and clearly problematic facts. The court presents these cases as rare remediable aberrations, ignoring the well-documented history of racism in jury selection. The final section juxtaposes limited reforms with the contemporary prison abolitionist movement to illuminate boundaries of incremental reforms. Reforms must reflect cognizance of the extent to which racism exists at multiple levels. Reforms that do not are less likely to make change, because they are either narrow in scope or focused on discrimination by individuals.

In Batson v. Kentucky (1986), the US Supreme Court sought to eradicate racial discrimination in jury selection by prohibiting the exercise of peremptory strikes based on race. This chapter reviews the evidence that Batson has failed to protect jurors from race-based strikes and the reasons for this failure. The test for establishing racial discrimination set forth in Batson suffers from design flaws that make its enforcement difficult given common psychological mechanisms at work in the decision-making process and which may be exacerbated by the jury selection process itself. Batson seeks to remedy only intentional discrimination. Moreover, its capacity to ensure diverse juries is limited by the stages of jury selection that precede its application. Enforcing Batson effectively is critical to the system’s integrity, but no simple solutions exist to remedy the stubborn persistence of racial bias in jury selection. All of this suggests that measures are needed to strengthen Batson’s protections.

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