Forgetting Furman

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

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).