"Abolition Then and Now: The Role of Furman's Failure in Today's Abolition Success"

The title of this post is the title of this new article authored by Corinna Lain and now available via SSRN. Here is its abstract:

On the fiftieth anniversary of Furman v. Georgia, one cannot help but draw comparisons between the sociopolitical context in which we find ourselves today, and the one in which the Justices found themselves in 1972.  Once again, the death penalty is dying — history, it would seem, is repeating itself.  But beneath these surface similarities lie important differences between the two eras, and what they mean for the larger abolition story.  Abolition today is not a story about the highest court in the land; rather, it is a story about a movement from the bottom-up, with states ending the death penalty on their own.  Instead of aiming high, abolitionists are aiming low.  In two ways, Furman itself played a part in this dramatic shift.  First, the backlash to Furman taught abolitionists that the Supreme Court’s “help” may do more harm than good, halting change already in progress, and that the Court would be a fickle friend. Hence the lesson to aim low.  Second, the Supreme Court’s reaction to Furman’s backlash in Gregg v. Georgia inadvertently set in motion the means to make this dramatic shift happen.  Gregg’s attempt to tame the death penalty created a mass of complicated doctrine, and that gave rise to a cadre of specialized capital defenders to navigate it. Those defenders are the foot soldiers of today’s abolition movement, killing the death penalty by saving one life at a time.  The modern path to abolition is not without its downsides, but the upside to states ending the death penalty on their own is that this time when the death penalty dies, it may well stay that way for good.