Double Duty: The Amplified Role of Special Circumstances in California’s Capital Punishment System

Legal scholars have argued that relying solely upon the eligibility decision in capital case processing to reduce arbitrary outcomes contravenes the underlying goal articulated in Gregg v. Georgia. This Article adds to this line of scholarship by illustrating how eligibility and selection are not easily distinguished as discrete decisions when capital juries are tasked with doing both in the course of their duties. To the extent that most sentencing schemes rely upon capital juries to do both jobs—determine eligibility and make the selection decision—the consideration of aggravating evidence for the purpose of eligibility, and its use as something to be weighed in determining sentencing, is messier in practice. Specifically, the Article focuses on California’s death penalty scheme to illustrate how its overbroad eligibility criteria “bite twice,” first by failing to narrow the pool of defendants who may face the death penalty (the “eligibility decision”), and then by swamping the selection decision by exerting extraordinary influence on the jury’s sentencing decision, relative to mitigating evidence. The Article first details California’s death penalty process including its narrowing mechanism. Then the Article presents evidence from empirical research that offers insight into how death-eligible Californians understand and consider statutory aggravation (“special circumstances” in California’s statutory scheme), especially in relation to mitigating evidence. The Article concludes by outlining next steps for further research on how eligibility and selection determinations work together to produce the twin failures of California’s current death penalty machinery: a failure to narrow eligibility and a failure to ensure coherence in sentence outcomes.