Waking the Furman Giant

63 Pages Posted: 5 Aug 2014 Last revised: 30 Oct 2018

See all articles by Sam Kamin

Sam Kamin

University of Denver Sturm College of Law

Justin F. Marceau

University of Denver Sturm College of Law

Date Written: August 5, 2014

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.

Suggested Citation

Kamin, Sam and Marceau, Justin F., Waking the Furman Giant (August 5, 2014). 48 U.C. Davis L. Rev. 981 (2015); U Denver Legal Studies Research Paper No. 14-39. Available at SSRN: https://ssrn.com/abstract=2476572 or http://dx.doi.org/10.2139/ssrn.2476572

Sam Kamin (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States
303-871-6125 (Phone)
303-871-6711 (Fax)

HOME PAGE: http://law.du.edu/index.php/profile/sam-kamin

Justin F. Marceau

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
254
Abstract Views
2,165
rank
123,136
PlumX Metrics