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

6 Pages Posted: 25 Sep 2009  

Bidish Sarma

University of California, Berkeley School of Law; The Justice Center's Capital Appeals Project

Date Written: September 24, 2009

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

Suggested Citation

Sarma, Bidish, Furman‘s Resurrection: Proportionality Review and the Supreme Court's Second Chance to Fulfill Furman‘s Promise (September 24, 2009). Cardozo Law Review de novo, p. 238, 2009. Available at SSRN: https://ssrn.com/abstract=1478182

Bidish Sarma (Contact Author)

University of California, Berkeley School of Law ( email )

391 Simon Hall
UC Berkeley
Berkeley, CA 94720
United States

The Justice Center's Capital Appeals Project ( email )

636 Baronne St.
New Orleans, LA 70113
United States

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