Monday, April 22, 2019
Catherine M. Grosso, Jeffrey Fagan, Michael Laurence, David C. Baldus, George G. Woodworth and Richard Newell (Michigan State University College of Law, Columbia Law School, Law Office of Michael Laurence, University of Iowa - College of Law, University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law) have posted Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement (UCLA Law Review, Forthcoming) on SSRN. Here is the abstract:
The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States. To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment. This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement. Our analysis uses a sample of 1,900 cases drawn from 27,453 California convictions for first-degree murder, second-degree murder, and voluntary manslaughter with offense dates between January 1978 and June 2002. Contrary to the teachings of Furman, we found that several of California’s “special circumstances” target capital eligibility disparately based on the race or ethnicity of the defendant. In so doing, the statute appears to codify rather than ameliorate the harmful racial stereotypes that are endemic to our criminal justice system. The instantiation of racial and ethnic stereotypes into death-eligibility raises the specter of discriminatory intent in the design of California’s statute, with implications for constitutional regulation of capital punishment.