Stalking the Jets and the Sharks: Exploring the Constitutionality of the Gang Death Penalty Enhancer

50 Pages Posted: 16 Nov 2008

See all articles by Harry M. Caldwell

Harry M. Caldwell

Pepperdine University - School of Law

Daryl Fisher-Ogden

Cal Lutheran University

Date Written: November 12, 2008

Abstract

This article considers the constitutionality of the recent effort to expand death penalty qualifying circumstances, specifically "gang-related murder." Currently, four states include gang-related murder in their death penalty schemes. This articles questions whether this qualifier meets the narrowing standard set by the Supreme Court in Furman v. Georgia for death penalty schemes. Furman requires that there be an identifiable and rational means of distinguishing who is to be capitally charged from those who are capitally eligible. As gang-related crimes are a harsh reality in America, the gang-related qualifier may cede too much discretion to state prosecutors because of the high percentage of gang-related murders compared to all murders. The gang-related qualifier may further raise constitutional issues of whether "gang-related" is specific enough to instill confidence that the notice requirements demanded by the Due Process Clause are met. Finally, the gang-related qualifier may run afoul of Furman's narrowing requirement as it is the first death qualifier that singles out membership or association in a particular type of organization. As gang membership may well begin with a presumption favoring death charges, the mere fact of association would place gang members in a particularly vulnerable position - a position contrary to Furman.

Keywords: Constitution, death penalty, capital punishment, Furman, gang, gang member, gang-related murder, murder, homicide, capital, capital offense, crime, capital crime, due process, death qualifier

Suggested Citation

Caldwell, Harry M. and Fisher-Ogden, Daryl, Stalking the Jets and the Sharks: Exploring the Constitutionality of the Gang Death Penalty Enhancer (November 12, 2008). George Mason Law Review, Vol. 12, 2004. Available at SSRN: https://ssrn.com/abstract=1300494

Harry M. Caldwell (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

Daryl Fisher-Ogden

Cal Lutheran University ( email )

United States

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