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


The influence of race on the administration of capital punishment had a major role in the U.S. 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 dimensions 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. California’s death penalty statute requires a finding of one or more enumerated special circumstances for death eligibility. Contrary to the teachings of Furman, however, we found that several of California’s special circumstances apply 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 application of California’s statute, with implications for constitutional regulation of capital punishment.

About the Author

Catherine M. Grosso is a professor at Michigan State University College of Law. Jeffrey Fagan is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School and Professor of Epidemiology at the Mailman School of Public Health, Columbia University. Michael Laurence previously was the 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. David Baldus is the late 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. George Woodworth is Professor Emeritus, Department of Statistics and Actuarial Science, University of Iowa. Richard Newell was a Research Associate at the University of Iowa College of Law at the time this study was conducted.