2015] FORGETTING FURMAN 1151
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).