Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement

56 Pages Posted: 14 Apr 2019

See all articles by Catherine M. Grosso

Catherine M. Grosso

Michigan State University College of Law

Jeffrey Fagan

Columbia Law School

Michael Laurence

Law Office of Michael Laurence

David C. Baldus

University of Iowa - College of Law

George G. Woodworth

University of Iowa - Department of Statistics & Actuarial Science

Richard Newell

University of Iowa - College of Law

Date Written: March 11, 2019

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.

Keywords: Death penalty, Race & Ethnicity, Criminal law, Empirical legal studies

Suggested Citation

Grosso, Catherine M. and Fagan, Jeffrey and Laurence, Michael and Baldus, David C. and Woodworth, George G. and Newell, Richard, Death by Stereotype: Race, Ethnicity, and California’s Failure to Implement Furman’s Narrowing Requirement (March 11, 2019). UCLA Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3354842

Catherine M. Grosso (Contact Author)

Michigan State University College of Law ( email )

Law College Building
648 N. Shaw Lane, Office 417
East Lansing, MI 48824-1300
United States

Jeffrey Fagan

Columbia Law School ( email )

435 West 116th Street
New York, NY 10027
United States
212-854-2624 (Phone)
212-854-7946 (Fax)

HOME PAGE: http://www.law.columbia.edu/fac/Jeffrey_Fagan

Michael Laurence

Law Office of Michael Laurence ( email )

1770 Post St., No. 123
San Francisco, CA 94115
United States
4153175818 (Phone)

David C. Baldus

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

George G. Woodworth

University of Iowa - Department of Statistics & Actuarial Science ( email )

Iowa City, IA 52242-1409
United States

Richard Newell

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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