Furman at 45: Constitutional Challenges from California's Failure to (Again) Narrow Death Eligibility

Abstract

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.

Geographic arbitrariness? County court variation in capital prosecution and sentencing in Pennsylvania

“…The key goal of Furman (1972) and the legislation pursuant to it was to limit discretion and narrow the death penalty to the most serious offenders. We agree with Baldus et al (2019), Barnes et al (2009), Marceau et al (2013), and others that the clearest of these remedies is to strengthen this "narrowing function" that is supposed to be performed by statutory definitions of aggravating factors. Failing to perform that narrowing function permits wide geographic disparity (Baldus et al, 2019;Barnes et al, 2009), and the wide discretion some aggravating factors permit was the grounds for the challenge Arizona's death penalty statute in Hidalgo v. Arizona (2018).…”

“…Justice Stephen Breyer (Justice Ruth Bader Ginsburg concurring), in recent dissents in Glossip v. Gross (2015), Jordan v. Mississippi (1986), and Evans v. Mississippi (2018), decried that the death penalty suffered from arbitrary application, in part as a result of wide geographic disparity in death sentences and their concentration in a comparatively small number of counties nationwide. Prior research has shown that different counties have much different rates of seeking and imposing the death penalty (see reviews by Baldus et al, 2019;Barnes et al, 2009;Gould & Leon, 2017). Critics would see place-based variation in murder case processing and sentencing as an unwarranted disparity that comes close to the kind of arbitrariness that Furman v. Georgia (1972) decried.…”

“…Prior research has shown that different counties have much different rates of seeking and imposing the death penalty (see reviews by Baldus et al., 2019; Barnes et al., 2009; Gould & Leon, 2017). Critics would see place‐based variation in murder case processing and sentencing as an unwarranted disparity that comes close to the kind of arbitrariness that Furman v. Georgia (1972) decried.…”

“…As with other capital punishment states (Baldus et al, 2019;Barnes et al, 2009), Pennsylvania's aggravating circumstances vary in their specificity and breadth. Some aggravating circumstances, such as victimizing a firefighter or a police officer or victimizing someone under 12 years old or younger, refer to specific, clear-cut circumstances.…”

“…Only 2% of U.S. counties have accounted for 56% of death sentences since 1976, and all inmates on death rows as of 2013 came from 20% of U.S. counties (Death Penalty Information Center, 2013; https://deathpenaltyinfo.org/twopercent; Smith, 2012). Other research has shown that the likelihood of prosecutors seeking the death penalty, and death sentences, varies across counties within states that retain the death penalty (e.g., Baldus et al., 2019; Barnes, Sloss, & Thaman, 2009; Gould & Leon, 2017). Thus, death sentences, and exposure to them, concentrates geographically.…”