Capital Crime: How California’s Administration of the Death Penalty Violates the English Amendment

Capital Crime: How California’s Administration of the Death Penalty Violates the English Amendment


There have been fewer executions in California than deaths by lightning strike. But what does the death penalty have to do with lightning? The comparison is drawn from the analysis in the landmark capital punishment case, Furman v. Georgia, which held capital punishment at the time to be unconstitutional. That analysis, now mostly relegated to sound bite status, suggests that California’s capital punishment system is unconstitutional. In Furman, Justice Stewart compared being sentenced to death with getting struck by lightning, in the sense that sentencing was both arbitrary and capricious. The Furman court noted that this was not acceptable because it meant that capital punishment could not serve the legitimizing penal purposes of deterrence and retribution. Now once inmates have been sentenced to death in California, executions are so infrequent that comparison with lightning is generous. Because the execution rate in California is so low, sentencing does not correspond to the actual imposition of the death penalty. Only 13 inmates have been executed since 1978. There are currently 677 on death row. This paper aims to show that as a result of a low execution rate and inmate death row stays averaging around 17 years and growing, capital punishment in California is no longer more retributive or deterrent than the punishment of life without parole. As such, it is excessive and violates the Eighth Amendment. Part I introduces the subject in context with other developments in capital punishment. Part II addresses different theories of retribution and deterrence and defines retribution and deterrence in the context of capital punishment and this paper. Part II also illustrates why retribution and deterrence are essential elements to a constitutional capital punishment scheme. Part III argues that the delay in California between judgment and executions frustrates the furtherance of retribution and deterrence. Part IV focuses on the low number of executions in California and why this prevents retribution and deterrence. Part V discusses potential solutions to California’s capital punishment problem. Finally, Part VI summarizes key points from the paper.

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