INTRODUCTION :: On September 20, 1968, after a one-day trial, a Georgia jury sentenced William Henry Furman to death for a felony-murder committed a year earlier and so set the stage for the Supreme Court’s now thirty-five-year-old effort to regulate and rationalize the states’ use of the death penalty. The murder occurred during a burglary of the victim’s house and was described by Furman, the only eyewitness, as follows:
They got me charged with murder and I admit, I admit going to these folks’ home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn’t intend to kill nobody. I didn’t know they was behind the door. The gun went off and I didn’t know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That’s all to it.
The Georgia Supreme Court accepted Furman’s version of the facts-that “he accidentally tripped over a wire in leaving the premises causing the gun to go off” -and the U.S. Supreme Court understood the killing to have been unintentional. Furman’s death sentence was overturned in the landmark decision of Furman v. Georgia, and, in Furman and subsequent cases, the Supreme Court read the Eighth Amendment to contain two principles limiting the states’ power to make death-eligible defendants found guilty of murder.
The first of these principles is understood to have been the basis for the holding in Furman itself. Although there was no majority opinion in Furman, all five justices in the majority focused on the infrequency with which the death penalty was imposed, with Justices Stewart and White in particular emphasizing that the relative infrequency of its application created the risk that it would be arbitrarily imposed. Justice Stewart found that the death sentences at issue in Furman were “cruel and unusual” because, of the many persons convicted of capital crimes, only “a capriciously selected random handful” were sentenced to death. Justice White concluded that “the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Subsequently, the Court cited to the opinions of Justices Stewart and White as embodying the Furman holding, and in Zant v. Stephens the Court held that, to meet the Furman concern about the risk of arbitrary enforcement, the states, by statute, were required to “genuinely narrow,” by rational and objective criteria, the death-eligible class.
The Court’s second principle was articulated in Gregg v. Georgia, where the Court addressed a challenge that was made in Furman but was not the basis of the Furman “holding”: that the death penalty violated the Eighth Amendment because it was disproportionate. Although, in Gregg, the Court held that the death penalty was not disproportionate for all murders, the plurality assumed that the Eighth Amendment did embody a proportionality principle and left open the possibility that the death penalty might be disproportionate for certain crimes. A year after Gregg, in Coker v. Georgia, the Court held that the death penalty for rape of an adult woman was disproportionate. Subsequently, in Enmund v. Florida and Tison v. Arizona, the Court held that the death penalty was not always a proportionate penalty even for murder. Both Enmund and Tison involved defendants who, as accomplices to armed robberies, were convicted of felony-murders and sentenced to death although they were not the “triggermen” and did not intend the killings. Together the cases hold that the death penalty is a disproportionate punishment for felony-murder unless the defendant is a major participant in the felony and acts with at least reckless indifference to human life.
The Furman-Zant “genuine narrowing” principle and the Enmund-Tison “proportionality” principle are complementary, although each has a different focus. The Furman-Zant principle is state specific, requiring each state to narrow death- eligibility to defendants committing the most aggravated murders, as determined by the particular state. The Enmund-Tison principle sets a national standard, requiring the states to exclude from death eligibility those defendants who commit murders not deemed sufficiently aggravated by the nation as a whole. In combination, the principles require states to limit death- eligibility to defendants who commit “a narrow category of the most serious crimes,” the “worst of the worst,” because “‘the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State.’”
Using California as a case study, this Article examines the application of these two Eighth Amendment principles in the case of defendants who, like William Furman, are found guilty of felony-murders in the commission of, or attempted commission of, robbery or burglary. Because the two underlying felonies, robbery and burglary, are generally committed with similar motives and intentions-a substantial proportion of robberies are committed indoors and therefore involve a burglary, and a majority of burglaries are committed for the purpose of theft and become robberies or attempted robberies when force (in this context, lethal force) is used-they will be treated together throughout this Article. This Article refers to a defendant who is found guilty of murder for a killing during the commission of, or attempted commission of, either robbery or burglary as a “robbery-burglary murderer,” and this Article will focus on the “ordinary” robbery-burglary murderer-one whose murder involved no more aggravating statutorily defined death-eligibility factor than the fact that the murder occurred during a robbery or burglary.
Part II of this Article describes the California death penalty scheme as it applies to the robbery-burglary murderer and discusses the findings of two empirical studies on death-sentencing in California: a study of all murder convictions in Alameda County for murders committed during a twenty-three-year period (the “Alameda County Study”); and a 1997 five-year statewide study based on appellate opinions in murder cases (the “Statewide Study”). Part III analyzes the Furman-Zant principle and applies it to California robbery-burglary murderers. Part IV analyzes the Enmund-Tison principle and applies it to California robbery-burglary murderers. Part V sets the problem of death-eligibility for ordinary robbery-burglary murderers in the larger context of the breadth of death- eligibility under the California scheme and argues that the overbreadth of states’ death penalty schemes must inevitably lead to arbitrary and disproportionate results and that a first step to address this overbreadth would be to eliminate or substantially narrow death-eligibility for ordinary robbery-burglary murderers.
March 2015, Vol. 67, No. 2
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