Furman‘s Resurrection: Proportionality Review and the Supreme Court's Second Chance to Fulfill Furman‘s Promise

Abstract

Last term, Justice Stevens‘ statement respecting the denial of certiorari in Walker v. Georgia resurrected the specter of Furman‘s unfulfilled promise-that the Court would not tolerate a death sentence based upon arbitrary or discriminatory factors. Stevens observed that "the likely result of such a truncated [proportionality] review . . . is the arbitrary or discriminatory imposition of death sentences in contravention of the Eighth Amendment." Not only has this statement sparked renewed interest in an area of death penalty jurisprudence many believed to be a dead letter, but it also may provide capital defendants with the opportunity to present the Court with pervasive evidence that death sentencing today is no less arbitrary than when the Court decided Furman.

After briefly revisiting Furman‘s holding, this article reviews the trajectory of the Court‘s proportionality review jurisprudence. It then explores how meaningful proportionality review can substantially decrease the risk that criminal defendants will suffer arbitrary death sentences. Finally, it argues that in the face of mounting evidence that the death penalty is as arbitrary now as it was when Furman was decided, challenges to deficient proportionality review practices provide the Court with a new and timely opportunity to fulfill a constitutional promise it recognized nearly forty years ago.

Keywords: Proportionality Review, Capital Punishment, Death Penalty, Supreme Court, Furman v. Georgia, Walker v. Georgia

JEL Classification: K14, K41, K42