California

Here are the questions that you’re supposed to answer on the research that I’ve downloaded. The calss is The death pDid your study find a racial bias in the application of the death penalty?Did your study debunk the notion that the death penalty is applied in a racially biased manner?Who did the study?What was studied? Race of people sentenced to death? Race of the victims of people sentenced to death? Other studies?When was the study done?Where?Why was the study done? Academic inquiry? Legislative inquiry? Other?What court cases seemed to influence your researchers’ efforts?Did the study’s results surprise you?
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Citation: 46 Santa Clara L. Rev. 1 2005-2006
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THE IMPACT OF LEGALLY INAPPROPRIATE
FACTORS ON DEATH SENTENCING FOR
CALIFORNIA HOMICIDES, 1990-1999
Glenn L. Pierce*
Michael L. Radelet**
This study examines the racial, ethnic, and geographical
variations present in the imposition of the death penalty in
California. In doing so, it analyzes all reported homicides
committed in California during the 1990s, comparing those
that resulted in a death sentence with those that did not.
I.
OVERVIEW
A. The Death Penalty in California,1972-2003
In February 1972, the California Supreme Court emptied
Principal Research Scientist, Institute for Race and Justice and College of
Criminal Justice, Northeastern University, Boston, Massachusetts; B.A., Bates
College; M.A., Northeastern University; Ph.D., Northeastern University.
** Professor and Chair, Department of Sociology, University of Colorado,
Boulder, Colorado; B.A., Michigan State University; M.A., Eastern Michigan
University; Ph.D., Purdue University.
The authors appreciate the assistance in gathering data on California death
sentences from Michael Millman and John Tate from the California Appellate
Project and Santa Clara University law students David Richter and Courtney
Salera. Portions of the California homicide data were obtained from the
California Department of Health Services, Center for Health Statistics. The
authors thank Alan Saiz, College of Criminal Justice, Northeastern University,
for his consultation and database management. The authors also thank David
C. Baldus, Samuel R. Gross, and Elisabeth Semel for their helpful comments on
earlier drafts. Finally, the authors would like to acknowledge the support
provided by the Institute on Race and Justice and the College of Criminal
Justice, Northeastern University, and the Department of Sociology, University
of Colorado. The analyses, interpretations, and conclusions reported herein are
solely those of the authors.
*
SANTA CLARA LAW REVIEW
[Vol: 46
that state’s death row when it decided People v. Anderson.1
The court based its decision on the State Constitution’s ban
on cruel or unusual punishments. The ban automatically
commuted the sentences of all 107 inmates then on
California’s death row to life imprisonment.2 Four months
later, the United States Supreme Court’s landmark death
penalty ruling in Furman v. Georgia’ emptied all other death
rows in the United States.
Many California voters were not pleased with the effect
of People v. Anderson. In November 1972, they passed
Proposition 17, a ballot initiative that amended the California
Constitution specifically to allow for the death penalty.4 The
California legislature responded to this initiative in 1973 by
enacting a statute making the death penalty mandatory upon
conviction of first-degree murder with a finding of at least one
of ten statutorily defined “special circumstances.”‘ However,
1. 493 P.2d 880 (Cal. 1972), cert. denied, 406 U.S. 958 (1972).
2. See Jonathan R. Sorenson, James W. Marquart & Madhava R.
Bodapati, Research Note: Two Decades After People v. Anderson, 24 LOY. L.A. L.
REV. 45 (1990), for research on the effects of People v. Anderson.
3. 408 U.S. 238 (1972). Furmanwas announced on June 29, 1972. Id.
4. This initiative declared that the death penalty was not “the infliction of
cruel or unusual punishments within the meaning of Article I, Section 6 [of the
California Constitution].” CAL. CONST. art. I, § 27. For more information on the
history of the death penalty in California after 1972, see Steven F. Shatz &
Nina Rivkind, The CaliforniaDeath Penalty Scheme: Requiem for Furman?, 72
N.Y.U. L. REV. 1283, 1306-17 (1997); John W. Poulos, The Lucas Court and the
Penalty Phase of the Capital Trial: The Original Understanding,27 SAN DIEGO
L. REV. 521, 527-42 (1990).
5. See 1973 Cal. Stat. 719, §§ 1-5 (current version at CAL. PENAL CODE §
190.2 (Deering 2005)).
In California, prosecutors make this decision by
charging “special circumstances,” which, if found at the sentencing phase of the
trial, make the homicide a death-eligible case. Id. The initial list of special
circumstances is found in 1973 Cal. Stat. 719, §§ 1-5. The California Supreme
Court has ruled that the special circumstances “perform the same
constitutionally
required
‘narrowing’
function
as
the
‘aggravating
circumstances’ or ‘aggravating factors’ that some of the other states use in their
capital sentencing statutes.” People v. Bacigalupo, 862 P.2d 808, 813 (Cal.
1993).
However, “special circumstances” are not the same as “aggravating
factors.” As Shatz and Rivkind explain, “California’s special circumstances
operate at the guilt phase to define the class of death-eligible first degree
murderers …. They should not be confused with California’s ‘aggravating
circumstances,’ which operate at the penalty phase to help the jury select the
penalty.” See Shatz & Rivkind, supra note 4, at 1291 n.39 (citation omitted).
Examples of “special circumstances” in the 1973 statute include whether the
victim was a police officer, whether the murder was committed to eliminate a
witness, and whether the murder was accompanied by one of a specified list of
2005]
CALIFORNIA DEATH SENTENCING
when the U.S. Supreme Court approved several new death
penalty statutes in 1976,6 it also invalidated the mandatory
death penalty statutes of North Carolina7 and Louisiana.8 As
a result of the later decisions, in late 1976 the California
Supreme Court invalidated California’s
mandatory
death
penalty law.9
The California legislature responded by passing a new
death penalty statute in 1977 that gave jurors the discretion
to decide whether defendants should be sentenced to death. 10
Like its predecessor, the 1977 statute required a conviction of
first-degree
murder with
the presence
of special
circumstances for the imposition of a death sentence.
However, the 1977 statute increased the number of special
circumstances that could be used to justify a death sentence
from ten to twelve.
The death penalty in California was further expanded
the next year when, on November 7, 1978, California voters
passed Proposition 7.1 Named after the California Senator
who was its author and chief supporter, John V. Briggs, the
Initiative superseded the 1977 law. It added fourteen new
special circumstances, and broadened some of the older ones
to allow prosecutors much more latitude in pursuing the
death penalty. 12
Since then, several more special
circumstances have been added, bringing the total to twentyfive, or a total of thirty-six when various subsections are also
included. 3 The definition of first-degree murder has also
accompanying felonies. See id. at 1307-08 n.141. “Aggravating circumstances”
include the circumstances of the crime, writ large. See CAL. PENAL CODE §190.3
(Deering 2005); Robert M. Sanger, Comparison of the Illinois Commission
Report on Capital Punishment with the Capital Punishment System in
California, 44 SANTA CLARA L. REV. 101, 109-19 (2003) (arguing that
aggravating circumstances “have been interpreted so broadly that prosecutors
can argue practically any case warrants the death penalty”).
6. See Gregg v. Georgia, 428 U.S. 153 (1976) and accompanying cases.
7. See Woodson v. North Carolina, 428 U.S. 280 (1976).
8. See Roberts v. Louisiana, 428 U.S. 325 (1976).
9. Rockwell v. Superior Court, 556 P.2d 1101, 1116 (Cal. 1976).
10. 1977 Cal. Stat. 316, § 9; see Shatz & Rivkind, supra note 4, at 1308 &
n.144.
11. Initiative Measure Proposition 7 (approved Nov. 7, 1978) (codified at
CAL. PENAL CODE §§ 190, 190.1-.5 (Deering 2005)).
12. See Shatz & Rivkind, supra note 4, at 1311 & n.155. The Briggs
Initiative broadened several special circumstances so that some non-intentional
murders were eligible for the death penalty, as were accomplices. Id. at 1313.
13. “There are twenty-five special circumstances under the current
SANTA CLARA LAW REVIEW
[Vol: 46
been broadened, further expanding14 the potential applicability
of the death penalty in California.
B. Demographicsand Homicides in California
California’s population is among the most ethnically and
racially diverse in the United States. Table la shows that the
of the state increased from
Hispanic population”5
approximately one-fourth of the total state population in
199016 to just under one-third by 2000.17 When race alone is
measured (regardless of ethnicity), the African American
population was 6.7% in 2000, with whites constituting 59.5%
of the population, and Asians and others constituting
approximately 33.8%.8
Table la
Hispanic Population-California, 1990 and 2000 (total population in
parentheses)
1990
2000
Hispanic
25.8%
(7,688,000)
(10,967,000).
Non-Hispanic
74.2%
(22,072,000)
67.6%
(22,905,000)
Total
29,760,000
33,872,000
32.4%
Population
California statutes, many with subsections, rendering over thirty-six actual
circumstances in which capital punishment may be sought.” Sanger, supra note
5, at 108-09.
14. This was done in several ways, including expanding the felonies that
can be used to find felony murder, expanding the means of murder to include,
for example, discharging a firearm from a motor vehicle, and by limiting
diminished capacity defenses. See Shatz & Rivkind, supra note 4, at 1314-15.
15. Hispanic refers to a person of Mexican, Puerto Rican, Cthan, Central or
South American, or other Spanish culture or origin, regardless of race.
16. See infra tbl.la; U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT
OF THE UNITED STATES: 1992, at 24-25 (112th edition 1992).
17. See infra tbl.la; U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT
OF THE UNITED STATES: 2002, at 26-28 (122nd edition 2002) [hereinafter 2002
STATISTICAL ABSTRACT].
18. See infra tbl.lb; 2002 STATISTICAL ABSTRACT, supra note 17, at 27.
2005]
CALIFORNIA DEATH SENTENCING
Table lb
Racial Breakdown-California, 1990 and 2000 (in thousands)
White
1990
2000
69.0%
(20,524,000)
59.5%
(20,170,000)
African
7.4%
6.7%
American
(2,209,000)
(2,264,000)
Asian & Other
23.6%
(7,027,000)
33.8%
(11,438,000)
Total
29,760,000
33,872,000
Population
California has the unfortunate distinction of leading the
United States in the number of homicides perpetrated.1 9 In
2001, there were 2206 homicides and non-negligent
manslaughters in California, followed by 1332 in Texas, 986
in Illinois, 960 in New York, and 874 in Florida.2″ With 653
homicides in 2002, Los Angeles recorded more homicides than
any city in the country. 2 ‘
California health statistics reveal that the risk of
homicide victimization varies significantly by gender, race,
and ethnicity. They show that between 1980 and 1997, males
were approximately four times more likely than females to
fall victim to homicide.2 2 From 1985 through 1997, there was
an annual average of 1285 Hispanic homicide victims, 1007
African American homicide victims, 946 white homicide
victims, and 184 homicide victims of Asian or “other” races.2 3
During that thirteen-year period, there were 44,483 homicide
victims counted by the California Department of Health
Services, of whom 37.6% (16,704) were Hispanic, 29.4%
(13,090) were African American, 27.6% (12,293) were white,
19. See FED. BUREAu OF INVESTIGATION, UNIFORM CRIME REPORTS, CRIME
IN THE UNITED STATES-2001, at 66-75 tbl.4 (2001), http://www.fbi.gov/
ucr/01cius.htm (last visited Oct. 5, 2005).
20. Id.
21. Richard Winton, Crime Edges Up in State, L.A. TIMES, Apr. 28, 2003, at
B7. Los Angeles’s homicide rate rose 11.1% during 2002. Id.
22. CAL. CTR. FOR HEALTH STATISTICS, HOMICIDE DEATHS, CALIFORNIA,
1980-1997, at 1 (1999), http://www.dhs.ca.gov/hisp/chs/OHIR/reports/
leadingcause/homicidel980.pdf (last visited Oct. 5, 2005).
23. See id. at 6 tbl.2.
[Vol: 46
SANTA CLARA LAW REVIEW
and 5.4% (2396) were Asian/other.2 4
By a wide margin, African Americans have the highest
crude homicide death rate per 100,000 population.2 5 They
averaged 47.4 deaths per year, 1985-1997. Crude annual
death rates during this period averaged 16.0 for Hispanic
victims, 6.1 for Asian/other victims, and 5.6 for white
victims.2 6 The victimization rate for African Americans in
California is high, but not unusual. National estimates from
the National Crime Victimization Survey in 2000 show that
African Americans reported 34.1 instances of victimization
from violent crime 27 per 1000 population, compared to 27.9 for
Hispanics, 26.5 for whites, and 8.4 for Asians.28
C. Post-Furman Death Sentencing and Executions in
California
As of July 1, 2005, California had the largest death row
population in the United States, with 648 inmates under
sentences of death.29 The race/ethnic composition of this
population is presented in Table 2. Note from Table lb that
the 2000 California population was 6.7% African American; in
contrast, the racial makeup of California’s death row in July
2005 was 36% African American.
This raises the obvious
question of whether death sentencing rates for African
Americans are disproportionate to the rate of involvement of
African Americans in capital offenses.
24. Id. at 6.
25. Id.
26. Id.
27. The survey includes as violent crime rape/sexual assault, robbery,
aggravated assault, and simple assault. CALLIE MARIE RENNISON, HISPANIC
VICTIMS
OF
VIOLENT
CRIME,
1993-2000,
at
1
(2002),
http://www.ojp.usdoj.gov/bjs/pub/pdf/hvvc00.pdf (last visited Oct. 5, 2005).
28. Id. at 2 tbl.1.
29. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., DEATH Row
U.S.A. 29-30 (2005), http://www.naacpldf.org/contentipdf’pubs/drasali
DRUSASummer_2005.pdf (last visited Oct. 5, 2005). The latest data published
by the California Department of Corrections shows 630 people on death row as
of Jan. 28, 2004. See CAL. DEP’T OF CORR., CONDEMNED INMATE SUMMARY
LIST, http://www.corr.ca.gov/CommunicationsOffice/CapitalPunishment
PDF/Summary.pdf (Oct. 20, 2005) [hereinafter CONDEMNED INMATE SUMMARY
LIST].
30. See infra tbl.2.
2005]
CALIFORNIA DEATH SENTENCING
Table 2
Death Row Inmates, July 1, 2005
California
Racial Breakdown of
648)31
=
(N
Race
Number
Proportion
White
253
.39
African American
233
.36
Hispanic
128
.20
Asian
20
.03
Native American
14
.02
Between 1972 and November 1, 2005, there were eleven
The names of those
prisoners executed in California. 32
executed, the date of execution, the number of victims they
were convicted of murdering, and the race of the defendant
and his victim(s) is displayed in Table 3.
Table 3
to Sept. 15, 2005 (N = 11)
1972
Executions in California,
Date
DateNameDefendant
Name
Race/Ethnicity
& Victim Race/Ethnicity*
04-21-92
Robert Harris
W-2W
08-24-93
David Mason-
W-5W
02-23-96
William Bonin
W-4W
05-03-96
Keith Williams
W-3L
07-14-98
Thomas Thompson
W-W
02-09-99
Jaturun Siripongs’**
A-2A
05-04-99
Manny Babbitt
B-W
03-15-00
Darrell Keith Rich
N-2W
03-27-01
Robert Massie-
W-W
01-29-02
Stephen Anderson
W-W
01-19-05
Donald Beardslee
* W = White; L = Hispanic; A = Asian; B
American
=
Native
N
Consensual
Foreign National
W-2W
=
African American;
31. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., supra note 29,
at 29.
32. See Death Penalty Information Center, http://www.deathpenaltyinfo.org
(follow “Execution Database” hyperlink and search for California executions)
(last visited Oct. 5, 2005).
[Vol: 46
SANTA CLARA LAW REVIEW
White Victim
White Defendant
7
African American
Defendant
1
Native American
Defendant
1
Asian Defendant
Asian Victim
Hispanic Victim
1
1
The table shows there were seven white defendants
executed, one African American, one Hispanic, one Asian, and
one Native American. 3 Of the eleven, nine were convicted of
killing non-Hispanic whites, one was convicted of killing an
Asian, and one was convicted of killing a Hispanic.34 Seven
(63.6%) of those executed were convicted of multiple
murders. 3 Two (18%) dropped their appeals and asked to be
executed.3 6
Seven white inmates, one African American
inmate, and one Native American inmate were executed for
killing whites.3 7 One white inmate was executed for killing
three Hispanics, and one Asian was executed for killing two
other Asians.38 Despite the California Health Department
data indicating that just 27.6% of the murder victims in the
state are white, 3 82% (9) of those executed were put to death
for killing whites.4 0 While one cannot generalize from eleven
cases, the pattern raises the question of whether a victim’s
race is inappropriately associated with decisions to impose
the death penalty in California.
We now turn our attention to a review of previous
research that has investigated patterns in death sentencing
in California.
33.
34.
35.
36.
37.
See supra tbl.3.
Id.
Id.
See Death Penalty Information Center, supra note 32.
See NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., supra note
29, at 10.
38. Id.
39. See CAL. CTR. FOR HEALTH STATISTICS, supra note 22, at 6 tbl.2.
40. See supra tbl.3.
2005]
CALIFORNIA DEATH SENTENCING
D. Research on Race, Arbitrariness,and Death Sentencing in
California
The possibility of racial bias in California death
sentencing has attracted the attention of several researchers
over the past four decades. However, only one major study
was conducted on pre-Furman jury decisions in California
capital cases. 4 The study examined 238 cases between 1958
and 1966 in which California juries decided whether to
impose death on defendants convicted of first-degree murder.
The death penalty was actually imposed in 103 of the cases.
The study found that the defendant’s race was uncorrelated
with whether or not the death penalty was imposed, but that
the economic status of the defendant was strongly associated
with death sentencing; “blue-collar” defendants were much
more likely to be sentenced to death than those from “whitecollar” backgrounds.42
Other research projects have focused on the question of
whether death sentencing is either predictable or arbitrary,
although few researchers have examined the possibility that
race may affect decisions in the processing of California
homicide cases under the death penalty statute now in force.
Only one research project has focused specifically on the
possible impact of race.
Stephen P. Klein and John E. Rolph, researchers at the
Rand Corporation, prepared that study for the California
Attorney General and the Los Angeles County District
Their work, however, did not examine
Attorney.”
prosecutorial decisions. Instead, it examined 496 cases in
which the prosecutors had charged special circumstances and
the defendants had been convicted of first-degree murder.45
41. Special Issue, A Study of the California Penalty Jury in First-DegreeMurder Cases, 21 STAN. L. REV. 1297 (1969).
42. Id.
43. Stephen P. Klein & John E. Rolph, Relationship of Offender and Victim
Race to Death Penalty Sentences in California,32 JURIMETRICS J. 33 (1991).
44. Id.
45. Id. Because prosecutors make a range of discretionary decisions before
conviction, the Klein and Rolph study is vulnerable to criticism of sample
selection bias. For example, their methodology is unable to detect any racial or
ethnic disparities that may result when prosecutors decide not to seek the death
penalty for those accused of the murders of African American victims less
frequently than for those accused of the murders of whites. Such disparities
also go undetected when, having charged one or more special circumstances
that make the defend …
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