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Abstract:
Beginning with Furman v. Georgia, the Supreme Court's seminal case applying the Eighth Amendment to the death penalty, the Court has developed two principles limiting the states' power to define death-eligibility: the principle from Furman and Zant v. Stephens that states are required to "genuinely narrow" the death-eligible class to avoid the risk of arbitrariness in the imposition of the death penalty and the principle from Enmund v. Florida and Tison v. Arizona that the death penalty is a disproportionate punishment for a particular category of murders when it does not comport with contemporary values and serves no penological purpose. In the present article, using the California death penalty scheme, generally regarded as the broadest in the country, the author examines the application of the two principles to robbery and burglary murderers, the largest category of death-eligible murderers. California, along with only five other states, makes death-eligible a defendant who kills during commission of a robbery or burglary, without regard to whether there are any other aggravating circumstances about the crime and without regard to the defendant's mens rea as to the killing. The author argues that the measure of "genuine narrowing" under the Furman/Zant principle and one of the measures of "contemporary values" under the Enmund/Tison principle is the rate at which death-eligible murderers are sentenced to death. Relying in part on two empirical studies demonstrating that at most only one in twenty robbery and burglary murderers is sentenced to death where there are no additional and more aggravating circumstances, the author concludes that the imposition of the death penalty on such murderers is unconstitutional under both of the Court's principles.

Eighth Amendment, death penalty, felony-murder