A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment

62 Pages Posted: 24 May 2022 Last revised: 29 Jun 2022

Date Written: May 20, 2022

Abstract

Overlooked historical sources call into question the standard narrative that the Supreme Court’s landmark decision in Furman v. Georgia (1972), which temporarily abolished the death penalty, reflected a challenge to its arbitrary, capricious, and discriminatory application. This Article examines materials that scholars have neglected, including the main brief in Aikens v. California, a companion case to Furman that presented the fundamental constitutional claim: the death penalty is inherently cruel and unusual.

Aikens was largely forgotten to history after it became moot, leaving Furman as the main case before the Court. The Aikens brief’s humanistic claims and rhetoric are at odds with the widespread idea that Furman was a case about administrative or procedural problems with capital punishment. This is truer of the Furman decision itself than of the way the case was litigated. Depicting any execution as “barbarity,” as an “atavistic horror,” the Aikens brief marshaled an argument that has garnered much less traction in modern America than Europe: the death penalty is an affront to human dignity. Yet the transatlantic divergence in framing abolitionism was not always as pronounced as it came to be in Furman’s aftermath. Since the Enlightenment, American and European abolitionists had long emphasized normative arguments against capital punishment, thereby revealing why they played a central role in Aikens-Furman.

Strikingly, the Aikens brief insistently quoted a European figure whose role in this seminal Supreme Court case has received no attention: Albert Camus. “Reflections on the Guillotine,” Camus’s denunciation of the death penalty’s inhumanity, is among the sources prominently featured in the Aikens-Furman briefs. The architect of this strategy was Anthony Amsterdam, a famed litigator. Subsequent generations of American abolitionists have placed less weight on humanistic objections to executions, instead stressing procedural and administrative claims. This shift has obscured how a lost chapter in death penalty history unfolded.

These events are key to understanding the evolution of capital punishment, from its resurgence in the late twentieth century to its present decline as the number of executions nears record lows. On Furman’s fiftieth anniversary, the Article offers another window into the past as scholars anticipate a future constitutional challenge to the death penalty in one or two generations.

Keywords: death penalty, mass incarceration, criminal punishment, criminal law, criminal procedure, dignity, human rights, wrongful convictions, innocence, race, Eighth Amendment, Furman v. Georgia, United States Supreme Court, France, Europe, legal history, comparative law, Albert Camus, law and literature

Suggested Citation

Jouet, Mugambi, A Lost Chapter in Death Penalty History: Furman v. Georgia, Albert Camus, and the Normative Challenge to Capital Punishment (May 20, 2022). American Journal of Criminal Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4115872 or http://dx.doi.org/10.2139/ssrn.4115872

Mugambi Jouet (Contact Author)

McGill Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada

HOME PAGE: http://https://www.mcgill.ca/law/about/profs/jouet-mugambi

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