Attacking the Death Penalty: Toward a Renewed Strategy Twenty Years after Furman

Abstract

The death penalty is perhaps the most controversial and widely discussed aspect of our criminal justice system. In every legal analysis of the death penalty, there is a moral dimension. Coloring any discussion of the death penalty, whether by journalist or judge, professor or Supreme Court Justice, is a particular political or philosophical position. This Note is no different. It is driven by a moral judgment that the death penalty is wrong, and by a political judgment that the death penalty contributes to a climate of violence in our country, is a poor use of our limited resources, and distracts our attention from developing effective solutions to crime and other problems in our society.

The purpose of this Note is to explain and to explore some of the issues underlying the development of a new strategy aimed at the abolition of the death penalty through a constitutional ruling in the courts. The proposed strategy is based on the premise that the Eighth Amendment has required limitations and safeguards on the imposition of the death penalty that are so restrictive as to impose extreme and unreasonable costs and burdens upon the judiciary and the criminal justice system as a whole.

Part I sets out the doctrinal background, based largely on the requirements of the Eighth Amendment, that has shaped the system of capital punishment into its present form, and discusses the earlier litigation strategy that helped to create it. Part II analyzes the effectiveness of the current doctrine in dealing with the problems of arbitrariness, discrimination, and infrequency that the Furman decision identified, and argues that the doctrine has, at best, achieved only modest success. Part III identifies a series of new problems that the doctrine has created in the process of achieving these modest or less than modest gains. Part IV discusses a new strategy that could be employed in a renewed effort to challenge the death penalty in the courts.

Keywords: death penalty, capital punishment