Does the use of custody status as a selection factor for the death penalty violate the Eighth Amendment?

jurisdictions with the death penalty regard custody status as a significant factor in either death penalty eligibility or death penalty selection, or for both purposes. Of the 31 states and the federal government whose laws currently authorize imposition of the death penalty, the laws of 29 states and the federal government use custody status as a death-eligibility or a death-selection factor, or both. It appears that only Nebraska and South Carolina do not explicitly include custodial status as a death-eligibility or selection factor." (Landry , supra , 2 Cal.5th at p. 113, 211 Cal.Rptr.3d 160, 385 P.3d 327.) We concluded: "Defendant does not cite, nor has our research found, a single judicial decision from any death penalty jurisdiction that has held that the use of custodial status as either an eligibility or a selection factor for the death penalty violates the Eighth Amendment. Nor has defendant shown that any jurisdiction that reenacted the death penalty following Furman v. Georgia [ (1972) ] 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, omitted custodial status as either an eligibility or selection factor for purposes of the death penalty. Thus, defendant fails to demonstrate the existence of an historical trajectory supporting a conclusion that the majority, or, indeed, any, of the death penalty jurisdictions has abandoned custody status as a factor for imposing the death penalty." (Id . at p. 113, 211 Cal.Rptr.3d 160, 385 P.3d 327.)

Defendant's constitutional challenge to section 4500's death eligibility provision fails.

3. Admission of Other Crimes Evidence in Aggravation ( 190.3, factor (b))