Litigating against the Death Penalty: The Strategy behind Furman

Abstract

In this article, excerpted from Professor Meltsner’s book Cruel and Unusual: The Supreme Court and Capital Punishment, the author describes the moratorium strategy crafted by NAACP Legal Defense Fund lawyers to reduce or eliminate executions in the years before the Court considered the constitutional arguments for abolition. In the 1972 Furman case the Court determined that the sort of broad discretionary death laws employed by those states that retained the penalty produced arbitrary and capricious death sentencing.