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49 Santa Clara L. Rev. [i] (2009)

handle is hein.journals/saclr49 and id is 1 raw text is: SANTA CLARA LAW REVIEW VOLUME 49 2009 NUMBER 1 CONTENTS ARTICLES SHOULD COMMISSION OF A CONTEMPORANEOUS ARSON, BURGLARY, KIDNAPPING, RAPE, OR ROBBERY BE SUFFICIENT TO MAKE A MURDERER ELIGIBLE FOR A DEATH SENTENCE?- AN EMPIRICAL AND NORMATIVE ANALYSIS Most death penalty jurisdictions have enacted statutory aggravating circumstances that make a murderer death-eligible if the murder was committed contemporaneously with one of five felonies: arson, burglary, kidnapping, rape, or robbery. These contemporaneous felony aggravators collectively render far more defendants death-eligible than all other aggravators combined. Yet contrary to this current paradigm, in recent years two blue-ribbon panels-the Illinois Commission on Capital Punishment, and the Massachusetts Governor's Council on Capital Punishment-have advocated abolition of contemporaneous felonies as aggravators. These panels proffered this recommendation with little or no empirical analysis of what effects such abolition would have on the universe of death-eligible defendants: specifically, would implementation of this recommendation eliminate less depraved murderers from death eligibility while still including more depraved murderers? This article seeks to fill that empirical vacuum by collecting and examining a database of over 1100 death-eligible defendants from a two-year period, over sixty percent of whom were rendered death-eligible by contemporaneous felonies. Analysis of this database leads to the conclusion that abolishing contemporaneous felonies as aggravators would have the undesirable effect of eliminating death-eligibility for a substantial number of defendants who are worthy of that status, while not solving the problem of excess prosecutorial discretion that is at the root of the blue-ribbon panels' objections. But while the article argues that the panels' recommendation is misguided, the author also argues that the current paradigm is virtually equally misguided because, like the panels' recommendation, it is based on a flawed one-aggravator-is- sufficient-and-all-are-equal model of death-eligibility. The author instead proposes a multi-factor, weighted model that more accurately reflects the depravity of the offense and the offender, and thus would better assure that only the worst of the worst become death-eligible. D avid M cCord ............................................ No DISTINCTIONS EXCEPT THOSE WHICH MERIT ORIGINATES: THE UNLAWFULNESS OF LEGACY PREFERENCES IN PUBLIC AND PRIVATE UNIVERSITIES Legacy preferences in college admissions offend the fundamental values of a society founded on equality and committed to social mobility based on talent and merit. Amassing extensive legislative history of the Civil Rights Act of 1866 and the Joint Resolution that became the Fourteenth Amendment, this article shows that the 39th

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