Waking the Furman Giant

Abstract

In its 1972 Furman v. Georgia decision, the Supreme Court - concerned that the death penalty was being imposed infrequently and without objectively measurable criteria - held that the penalty violated the Eighth Amendment to the Constitution. In the four decades since Furman there has been considerable Eighth Amendment litigation regarding capital punishment, but almost none of it has focused on the Court’s concern with arbitrariness and infrequency. But this may be about to change. With a growing body of quantitative data regarding the low death sentencing rates in several states, Furman is poised to return to center stage. While previous challenges attacked the form of various state capital statutes, new empirical data is leading condemned inmates to challenge the application of state sentencing statutes. This article announces the return of Furman - a splintered opinion that nonetheless remains binding precedent 42 years after it was decided - and provides a reading of that case that can guide courts as they consider the latest round of challenges to the application of capital punishment. A careful revisiting of Furman is necessary and overdue because the critical underpinnings of American death penalty jurisprudence - narrowing, eligibility, and individualization - are currently being conflated, or forgotten altogether by both courts and capital litigants. This Article, is a timely guidepost for the inevitable next wave of Furman litigation.