Forgetting Furman

Author:Robert J. Smith
Position:Assistant Professor of Law, University of North Carolina School of Law
Pages:1149-1207
SUMMARY

Furman v. Georgia is the darling of death penalty scholars and defense lawyers. Indeed, a fair characterization of the bulk of capital punishment scholarship and litigation is that it seeks to establish that the concerns that motivated the Court to strike down the death penalty in 1972— namely, arbitrariness and discrimination in the assessment of crime severity—necessitate the same result today. ... (see full summary)

 
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1149
Forgetting Furman
Robert J. Smith
ABSTRACT: Furman v. Georgia is the darling of death penalty scholars
and defense lawyers. Indeed, a fair characterization of the bulk of capital
punishment scholarship and litigation is that it seeks to establish that the
concerns that motivated the Court to strike down the death penalty in 1972—
namely, arbitrariness and discrimination in the assessment of crime
severity—necessitate the same result today. But these commentators have
hitched themselves to the wrong doctrinal star. The better argument against
the constitutionality of capital punishment is that the death penalty is
imposed with regularity upon offenders with insufficient personal culpability.
These are people with major functional impairments—severe mental illness,
intellectual deficiencies, and other serious cognitive and behavioral deficits—
that rival the impairments that death-ineligible intellectually disabled and
juvenile offenders endure. This Article explains why commentators should
forget about Furman and focus instead on further development of the Court’s
blossoming mitigation jurisprudence. It predicts that unlike the post-Furman
overhaul of capital punishment, the insufficient culpability problem is not
amenable to tinkering and should result in judicial abolition.
Assistant Professor of Law, University of North Carolina School of Law. I owe thanks to
Mark Bennett, Joseph Blocher, Jack Boger, Alfred Brophy, G. Ben Cohen, John Coyle, David
Harris, Emily Hughes, Richard Myers, Charles Ogletree, Dana Remus, Zoe Robinson, Richard
Rosen, Meredith Rountree, David Sklansky, Christopher Slobogin, and Carol Steiker. Thanks also
to Justin Davis, Dawn Milam, Joey Polonsky, and especially to Lauren Demanovich for excellent
research assistance.
1150 IOWA LAW REVIEW [Vol. 100:1149
INTRODUCTION ........................................................................... 1151
I. ARBITRARINESS AND DISCRIMINATION IN THE ASSESSMENT OF CRIME
SEVERITY ARE NOT THE BIGGEST OBSTACLES TO A
CONSTITUTIONALLY SOUND DEATH PENALTY ............................ 1155
A. THE LIMITATIONS OF FOCUSING ON CRIME-BASED
ARBITRARINESS ..................................................................... 1155
1. Narrowing and Numerousness ................................... 1159
2. Meaningful Appellate Review ..................................... 1162
B. THE LIMITATIONS OF FOCUSING ON CRIME-BASED RACE
DISCRIMINATION ................................................................... 1164
II. THE ORIGINS AND ASCENDANCY OF MITIGATION ....................... 1170
A. THE EVOLUTION OF CAPITAL MITIGATION IN INDIVIDUAL
CASES ................................................................................... 1171
1. Woodson v. North Carolina and the Emergence of Capital
Mitigation ..................................................................... 1171
2. Taking the Mitigation Function Seriously ................. 1173
B. CATEGORICAL EXCLUSIONS FOR INSUFFICIENTLY CULPABLE CLASSES
OF OFFENDERS ....................................................................... 1178
III. INSUFFICIENT CULPABILITY: RULE OR EXCEPTION? .................... 1181
A. INSUFFICIENT CULPABILITY IS A WIDESPREAD PROBLEM .......... 1181
B. THE MYTH OF EXTREME CULPABILITY? ................................. 1189
IV. INSUFFICIENT CULPABILITY AS THE PATH TO JUDICIAL
ABOLITION .................................................................................. 1195
A. THE REVERSE-FURMAN ROUTE .............................................. 1196
1. Arbitrariness ................................................................ 1196
2. Race Discrimination .................................................... 1200
B. THE CATEGORICAL EXEMPTION ROUTE .................................. 1202
CONCLUSION .............................................................................. 1207
2015] FORGETTING FURMAN 1151
INTRODUCTION
Even the most heinous murder is not automatically death-eligible. The
person who commits the crime must be someone with extreme culpability; in
other words, the person must have “a consciousness materially more depraved
than that of” the typical person who commits murder.1 Juries are entrusted to
determine on a case-by-case basis whether defendants exceed this extreme
culpability threshold.2 But juries do not—and cannot—succeed at reliably
sorting out those offenders with functional impairments serious enough to
render them insufficiently culpable for a death sentence.
States routinely execute people with major functional impairments.
Consider John Ferguson, a paranoid schizophrenic who became increasingly
hostile and delusional after suffering a gunshot wound to the head;3 or Daniel
Cook, who endured years of sadistic sexual and physical abuse and later
attempted to kill himself after numerous hospitalizations for depression;4 or
18-year-old Richard Cobb, who “suffered brain damage” and had “serious
emotional problems.”5 Most of the last hundred people executed in America
suffered from the aftermath of complex trauma, endured a serious mental
illness, or had a significant intellectual impairment.6 Some were not even old
enough to buy a beer.7
This insufficient culpability problem is the biggest obstacle to a
constitutionally sound death penalty, and it is a fatal one. It is not, however,
the theory most often advanced by scholars or relied upon by defense lawyers.
Instead, Furman v. Georgia8 remains the darling of capital punishment scholars
and lawyers.9 Furman described two specific concerns: arbitrariness, which is
the absence of legitimate grounds for explaining which crimes result in a
1. Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (internal quotation marks omitted); see
also Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) (stating that capital punishment “must be
limited to those offenders . . . whose extreme culpability makes them the most deserving of
execution” (quoting Roper v. Simmons, 543 U.S. 551, 568 (2005) (internal quotation marks
omitted))); Atkins v. Virginia, 536 U.S. 304, 319 (2002) (noting that “the culpability of the
average murderer is [] insufficient to justify the most extreme sanction available to the State”) .
2. See Roper, 543 U.S. at 572. This case-by-case approach does not extend to intellectually
disabled offenders or juveniles. See id. at 551 (exempting juveniles from capital punishment);
Atkins, 536 U.S. at 319 (exempting intellectually disabled persons from capital punishment).
3. Robert J. Smith et al., The Failure of Mitigation?, 65 HASTINGS L.J. 1221, 1240 (2014)
(describing the mitigating evidence presented in the cases of 100 recently executed offenders).
4. Id. at 1246–47.
5. Id. at 1235–36.
6. Id. at 1228–29.
7. See id. at 1236–37 tbl.2.
8. Furman v. Georgia, 408 U.S. 238 (1972).
9. See, e.g., James S. Liebman, Slow Dancing with Death: The Supreme Court and Ca pital
Punishment, 1963–2006, 107 COLUM. L. REV. 1 (2007); David McCord, Judging the Effectiveness of
the Supreme Court’s Death Penalty Jurisprudence According to the Court’s Own Goals: Mild Success or Major
Disaster?, 24 FLA. ST. U. L. REV. 545 (1997); Carol S. Steiker & Jordan M. Steiker, Abolition in Our
Time, 1 OHIO ST. J. CRIM. L. 323 (2003).

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