Race, Ethnicity, and the Death Penalty in San Diego County: The Predictable Consequences of Excessive Discretion

Two Supreme Court cases, Furman v. Georgia (1972) and McCleskey v. Kemp (1987) provide the framework for the study discussed in this essay, the largest single-county death penalty study. In Furman, although the issue of race discrimination in death sentencing was central to the litigation and was discussed by several of the justices, the “holding” addressed the issue only indirectly. The Court held that the discretionary death penalty schemes at issue were unconstitutional under the Eighth Amendment because death sentences were imposed so infrequently as to create too great a risk of arbitrariness. The Court’s subsequently developed remedy was to require state legislatures to “genuinely narrow” death penalty schemes and state courts to engage in “meaningful appellate review” of death sentences. In McCleskey, the Court rejected a death sentence challenge based on a statistical showing of racial discrimination in the state’s administration of the death penalty, but left open the possibility that a sufficiently large single-county study finding such racial discrimination could establish an equal protection violation. Our study of capital case charging in San Diego County, California, under California’s 1978 Death Penalty Law is just such a study. That law produced a death penalty scheme giving prosecutors the discretion to seek death in the vast majority of murder cases, resulting in a death sentence rate among death-eligible defendants even lower than that of Georgia at the time of Furman. Our study, covering a fourteen-and-ahalf-year period and using data from 1081 cases in which San Diego prosecutors charged an adult defendant with murder and obtained a homicide conviction, examines whether the race or ethnicity of defendants and/or victims affects how that broad prosecutorial discretion is used. We found that race/ethnicity is a significant factor in whether a defendant is charged capitally and whether the death penalty is sought, with the most substantial disparities occurring in cases with black defendants and white victims.