Copyright (c) 1997 New York University Law Review
New York University Law Review
ARTICLE: THE CALIFORNIA DEATH PENALTY SCHEME: REQUIEM FOR FURMAN?
72 N.Y.U.L. Rev. 1283
Steven F. Shatz *, Nina Rivkind **
In 1972, in Furman v. Georgia, the United States Supreme Court struck down the death penalty schemes of Georgia and other states as unconstitutional because they created too great a risk of arbitrary death sentences. The decision was based in part on the Justices' belief that relatively few (15-20%) of the number of death-eligible murderers were being sentenced to death and that there was no meaningful basis for distinguishing the cases in which the death penalty was imposed. In subsequent cases, the Court interpreted Furman to require that the states, by statute, genuinely narrow the death-eligible class. Professors Shatz and Rivkind argue that, in disregard of Furman, California has adopted a death penalty scheme which defines death-eligibility so broadly that it creates a greater risk of arbitrary death sentences than the pre-Furman death penalty schemes. They base their argument on an analysis of California statutory and decisional law and on a study of more than 400 appealed first degree murder cases. They conclude that unless the Supreme Court finds the California scheme unconstitutional, it has effectively abandoned Furman.
In 1971, in McGautha v. California, 1 the United States Supreme Court for the last time upheld death penalty schemes which, as to those convicted of first degree murder, gave prosecutors complete discretion whether to seek, and juries complete discretion whether to impose, the death penalty. At the time, the California death penalty statute made every first degree murderer death-eligible. 2 McGautha had challenged the statute ...
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