THE AUTHOR ANALYZES 197 CAPITAL CASES (88 FIRST-DEGREE, NONFELONY MURDER CASES AND 109 FELONY MURDER CASES) WHICH OCCURRED IN NEW YORK STATE BETWEEN 1958 AND 1968, THE DECADE DURING WHICH MOST SIGNIFICANT STATUTORY CHANGES IN THE DEATH PENALTY TOOK PLACE. THE SUPREME COURT'S 1972 FURMAN DECISION, WHILE NOT DECLARING THE DEATH PENALTY UNCONSTITUTIONAL PER SE, RESULTED IN THE VACATING OF MORE THAN 600 DEATH SENTENCES. HOWEVER, THE AUTHOR POINTS OUT THAT ONLY 4 YEARS LATER, 35 STATES HAD REINSTATED THE DEATH PENALTY AND 407 PERSONS HAD BEEN SENTENCED UNDER THE NEW STATUTES. THE POST-FURMAN STATUTED PROVIDED FOR EITHER MANDATORY DEATH PENALTIES OR THE USE OF GUIDED DISCRETION. THE SUPREME COURT'S 1976 RULINGS HAVE SINCE INDICATED THAT THOSE STATUTES WHICH PROVIDE FOR SOME DISCRETION IN CONSIDERING BOTH AGGRAVATING AND MITIGATING CIRCUMSTANCES CAN SURVIVE CONSTITUTIONAL TESTS, WHILE MANDATORY DEATH STATUTES PROBABLY CANNOT. THE STUDY APPEARS TO DEMONSTRATE, HOWEVER, THAT EMPIRICAL DATA DO NOT SUPPORT THE HYPOTHESIS THAT CAPITAL OFFENDERS ARE PROCESSED DIFFERENTLY UNDER MANDATORY AND DISCRETIONARY DEATH STATUTES, AT LEAST FOR THE SAMPLE OF OFFENDERS. THE STUDY EMPLOYED 18 VARIABLES, AND THERE WERE NO SIGNIFICANT DIFFERENCES BETWEEN MANDATORY AND DISCRETIONARY DEATH STATUTES. THE AUTHOR SPECULATES THAT PERHAPS DISCRIMINATION OPERATES AS A SYSTEM VARIABLE, WITH THE MAXIMUM FEASIBLE PENALTY BEING IMPOSED ON A RELATIVELY SMALL, CONSTANT SUBSET OF ALL OFFENDERS -- THOSE VIEWED AS THE MOST HEINOUS OR SERIOUS. (AUTHOR ABSTRACT MODIFIED).