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

• Author: Catherine M. Grosso,David C. Baldus,Michael Laurence,George Woodworth,Jeffrey A. Fagan,Richard Newell
• Date: 01 December 2019
• DOI: http://doi.org/10.1111/jels.12234
• Published date: 01 December 2019

Journal of Empirical Legal Studies

Volume 16, Issue 4, 693–730, December 2019

Furman at 45: Constitutional Challenges

from California’s Failure to (Again)

Narrow Death Eligibility

David C. Baldus, George Woodworth, Catherine M. Grosso,*

Michael Laurence, Jeffrey A. Fagan, and Richard Newell

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 exam-

ines whether California’s death penalty scheme complies with this requirement by empiri-

cally 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 Califor-

nia 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.

I. Introduction

This article examines the scope and application of California’s death penalty statute, par-

ticularly whether it satisfies the Eighth Amendment’s requirement that a state statute nar-

rows the subclass of offenders upon whom a sentence of death may be imposed. The

*Address correspondence to Catherine M. Grosso, Professor of Law, Michigan State University College of Law;

email: grosso@law.msu.edu. Baldus was Joseph B. Tye Professor of Law, University of Iowa College of Law

(Professor Baldus passed away in June 2011, after this article was drafted and the record in the related litigation

was completed); Woodworth is Professor Emeritus, Department of Statistics and Actuarial Science, University of

Iowa; Laurence was Executive Director of the Habeas Corpus Resource Center and counsel of record for Troy

Ashmus in the federal habeas corpus case challenging the California death penalty statute; Fagan is Isidor and

Seville Sulzbacher Professor of Law, Columbia University; Professor of Epidemiology, Mailman School of Public

Health, Columbia University; Newell was, at the time this research was conducted, a research associate at the Uni-

versity of Iowa College of Law.

693

narrowing requirement derives from the decision announced over 45 years ago in Furman

v. Georgia

1

in which the U.S. Supreme Court invalidated the then-current death penalty

statutes as violative of the Eighth Amendment’s prohibition against cruel and unusual

punishments. Citing statistics demonstrating the risk of arbitrary and capricious applica-

tion of capital punishment, the Supreme Court held that a death-sentencing procedure

is unconstitutional if it provides “no meaningful basis for distinguishing the few cases in

which [death] is imposed from the many cases in which it is not.”

2

Four years later, in Gregg v. Georgia,

3

and in its companion cases, the Supreme

Court reviewed the subsequently enacted statutes.

4

In upholding some of the statutes,

the Court, in a plurality opinion, explained that “Furman mandates that where discretion

is afforded a sentencing body on a matter so grave as the determination of whether a

human life should be taken or spared, that discretion must be suitably directed and lim-

ited so as to minimize the risk of wholly arbitrary and capricious action.”

5

To ameliorate

the risk of arbitrary and capricious sentencing, the Supreme Court has required that a

capital sentencing statute “genuinely narrow the class of persons eligible for the death

penalty and … reasonably justify the imposition of a more severe sentence on the defen-

dant compared to others found guilty of murder.”

6

Moreover, such direction and limita-

tion must be provided by statute to limit the discretion of individual prosecutors to

charge capital defendants and that of judges and juries to impose death sentences.

7

Over a decade after Gregg, the Supreme Court in Lowenfeld v. Phelps explained the

ways in which a statute may satisfy the narrowing requirement:

It seems clear to us from this discussion that the narrowing function required for a regime of

capital punishment may be provided in either of these two ways: The legislature may itself nar-

row the definition of capital offenses, as Texas and Louisiana have done, so that the jury

1

408 U.S. 238 (1972).

2

Id. at 313 (White, J., concurring); see also Maynard v. Cartwright, 486 U.S. 356, 362 (1988); Godfrey v. Georgia,

446 U.S. 420, 427–28 (1980) (plurality opinion).

3

428 U.S. 153 (1976).

4

Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976).

5

Gregg, 428 U.S. at 189 (plurality opinion); see also Zant v. Stephens, 462 U.S. 862, 878 (1983) (explaining the pur-

pose of the narrowing requirement); Furman, 408 U.S. 238, 313 (White, J. concurring) (recognizing that a death-

sentencing procedure is unconstitutional if it provides “no meaningful basis for distinguishing the few cases in

which [death] is imposed from the many cases in which it is not”).

6

Lowenfield v. Phelps, 484 U.S. 231, 244 (1988) (quoting Zant, 462 U.S. at 877).

7

Gregg, 428 U.S. at 207 (plurality opinion) (noting that the selection of the persons eligible to be sentenced to

death be “circumscribed by … legislative guidelines”); see also Hidalgo v. Arizona, 583 U.S. __, 138 S. Ct. 1054,

1054 (2018) (Breyer, J., statement respecting the denial of certiorari). (“To satisfy the ‘narrowing requirement,’ a

state legislature must adopt ‘statutory factors which determine death eligibility’ and thereby ‘limit the class of mur-

derers to which the death penalty may be applied.’”) (quoting Brown v. Sanders, 546 U.S. 212, 216, &

n. 2 (2006)).

694 Baldus et al.

finding of guilt responds to this concern, or the legislature may more broadly define capital

offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty

phase.

8

California, like several other states, has chosen to implement the narrowing requirement

by broadly defining capital offenses and then requiring the sentencer to find at least one

statutory aggravating factor that subjects the defendant to a death sentence.

9

Since the

1970s, however, states increasingly have adopted more statutory aggravating factors that

qualify as capital offenses.

10

Given these expansions of the application of the death pen-

alty, the question is whether the current statutes sufficiently narrow the class of persons

eligible for the death penalty.

11

The U.S. Supreme Court recently considered this question with respect to

Arizona’s death penalty statute when it reviewed the petition for a writ of certiorari in

Hidalgo v. Arizona.

12

The petitioner in Hidalgo sought Supreme Court review of

“[w]hether Arizona’s capital sentencing scheme, which includes so many aggravating cir-

cumstances that virtually every defendant convicted of first-degree murder is eligible for

death, violates the Eighth Amendment.”

13

Seeking an evidentiary hearing prior to trial,

Mr. Hidalgo proffered evidence that 98 percent of first-degree murder defendants

charged in Maricopa County, which encompasses the City of Phoenix and its surrounding

suburbs, were eligible for a death sentence.

14

Mr. Hidalgo argued that this evidence dem-

onstrated that Arizona failed to comply with the constitutional requirement set forth in

Furman and Gregg. Although the Supreme Court unanimously denied certiorari in

Hidalgo, three justices joined Justice Breyer’s statement that such evidence “warrants

8

Lowenfield, 484 U.S. at 246.

9

See, e.g., Cal. Penal Code §§ 189, 190.2 (West 2019) (requiring the finding of the presence of an enumerated

“special circumstance” before a defendant is subject to a capital sentence).

10

See, e.g., Daniel Ross Harris, Capital Sentencing After Walton v. Arizona: A Retreat from the “Death is Different”

Doctrine, 40 Am. U. L. Rev. 1389 (1990); Jonathan Simon & Christina Spaulding, Token of Our Esteem: Aggravat-

ing Factors in the Era of Deregulated Death Penalties, in The Killing State: Capital Punishment in Law, Politics

and Culture 81 (Austin Sarat, ed. 1999).

11

Lowenfield, 484 U.S. at 244 (quoting Zant, 462 U.S. at 877).

12

Hidalgo v. Arizona, 583 U.S. __, 138 S. Ct. 1054 (2018) (denying certiorari).

13

Petition for Certiorari, Hidalgo v. Arizona, No. 17-251, 2017 WL 3531089 at *1 (Aug. 14, 2017). Following Gregg,

Arizona provided nine statutory aggravators. At the time of Hidalgo’s conviction, the Arizona statute contained

10 aggravators. By the time Mr. Hidalgo filed his petition for certiorari, Arizona had 14. Subsequently, on April

10, 2019, the Arizona Governor signed legislation that removed or significantly modified three of the statutory

aggravators: (1) if the defendant created a grave risk of death to another person in addition to the person mur-

dered; (2) if the offense was committed in a cold, calculated manner without pretense of moral or legal justifica-

tion; and (3) if the defendant used a remote stun gun in the commission of the offense as defined in statute. Ariz.

Rev. Stat. § 13-751 (2019).

14

Hidalgo v. Arizona, 583 U.S. __, 138 S. Ct. 1054, 1056 (2018) (Breyer, J., statement respecting the denial of

certiorari).

Furman at 45 695