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August 12, 2014

"Waking the Furman Giant"

The title of this post is the title of this notable and timely new article by Sam Kamin and Justin F. Marceau available via SSRN. Here is the 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.

August 12, 2014 at 09:48 PM | Permalink


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"This Article, is a timely guidepost for the inevitable next wave of Furman litigation."

This article would be a lot better if the people who wrote the abstract didn't abuse the comma.

Posted by: The Death Penalty Sucks. | Aug 12, 2014 10:44:10 PM

Frustrating that 9 know nothing, pro-big government, government employed lawyer dumbasses get to make the decision on the best incapacitation method. I blame the Congress, the far superior branch for evading the decision.

The lawyer obstructs the death penalty. Then it argues its rarity makes it too arbitrary for due process.

The lawyer makes the DP rare, then it argues it does not work as a deterrent.

Such self dealing, plain dumbness, and ridiculousness of argument deserves reformation of the Supreme Court structure. Move it to the Midwest. Increase the number of justices to 900. Make whatever number of justices an even number.

Posted by: Supremacy Claus | Aug 13, 2014 6:40:37 AM

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