The Folly - and Faith - of Furman
Blume, John H., Johnson, Sheri Lynn, Journal of Appellate Practice and Process
Justice Marshall's opinion in Furman v. Georgia memorably characterizes the abolition of capital punishment as "a major milestone in the long road up from barbarism." (1) For abolitionists today, it is surprising to recall that this phrase was not coined by Marshall, but borrowed from former Attorney General Ramsey Clark. (2) That the chief law enforcement official of the United States might publicly condemn capital punishment is, from a modern perspective, almost unimaginable. Since then, we have seen one liberal presidential candidacy founder at least in part on resisting the lure of vengeance: Michael Dukakis's rejection of capital punishment even for a hypothesized murderer of his wife hurt him badly. We have also watched two purportedly liberal candidates hustle to support capital punishment in particularly dubious circumstances; Bill Clinton left the campaign trail to sign the death warrant of a man so mentally impaired by a self-inflicted gunshot wound that he didn't understand dying, (3) and Barack Obama joined the clamor against a (conservative) Supreme Court's decision that imposition of the death penalty for child rape is unconstitutional. (4) But back in Furman's day, it was politically possible to condemn capital punishment. Indeed, by the time the Court decided Furman, it seemed that, like torture, capital punishment would eventually and inevitably be consigned to the dustbin of history. (5)
In fact, Furman was the culmination of a long campaign by the Legal Defense Fund of the NAACP, one fought on multiple constitutional fronts in the attempt to achieve a moratorium. The LDF attack on the death penalty, which began because of manifest racial injustice in the imposition of the death penalty, continued to gather data on racial disparities in anticipation of a racial challenge. But it also pressed the issue of "death qualification," which resulted in the seating of juries particularly likely to convict and prone to favor capital punishment, the unreliability in the sentencing determination introduced by unitary proceedings, the broad use of capital punishment for crimes less than murder, and the lack of guidance given to juries in the determination of whether death was appropriate.
When Furman struck down capital punishment statutes from Georgia and Texas, the LDF's jubilation is easily imagined, and has been somewhat ruefully chronicled. (6) Whether or not the euphoria was widely shared, the belief--or, at least, the fervent hope--that Furman signaled the end of capital punishment was not limited to the abolitionist camp. (7) That hope, however, was short-lived. The backlash to Furman was both swift and furious. Public outrage was fierce, and by 1976, thirty-five states had enacted new capital punishment statutes designed to remedy the flaws identified in the Furman opinions.
Although almost 600 lives were spared by Furman--lives that, as Joan Cheever documented, were largely lived out nonviolently (8)--in the end, or at least in the middle, capital punishment was both reinstated and reinvigorated. Four years later, in Gregg v. Georgia, (9) the Supreme Court upheld Georgia's new "guided discretion" capital punishment statute, and by the end of the century, American executions approached a hundred a year. Why? There are many answers, including rising crime rates and changes in Supreme Court personnel. But certainly some of the explanation lies in the multiple Furman opinions, for just as Brown v. Board of Education (10) exemplifies strategic unanimity, Furman reflects a remarkable disregard for consensus. Every Justice wrote his own opinion, and none of the Justices in the majority even joined another Justice's opinion. The articles in this section reveal, in different but fundamental ways, both the folly of that fractured approach and an animating faith that Furman was nonetheless rightly decided.
Professor Sullivan's article (11) explores the persistent problem of race. …