Forgetting Furman

Forgetting Furman Robert J. Smith  ABSTRACT: Furman v. Georgia is the darling of death penalty scholars and defense lawyers. Indeed, a fair characterization of the bulk of capital punishment scholarship and litigation is that it seeks to establish that the concerns that motivated the Court to strike down the death penalty in 1972— namely, arbitrariness and discrimination in the assessment of crime severity—necessitate the same result today. But these commentators have hitched themselves to the wrong doctrinal star. The better argument against the constitutionality of capital punishment is that the death penalty is imposed with regularity upon offenders with insufficient personal culpability. These are people with major functional impairments—severe mental illness, intellectual deficiencies, and other serious cognitive and behavioral deficits— that rival the impairments that death-ineligible intellectually disabled and juvenile offenders endure. This Article explains why commentators should forget about Furman and focus instead on further development of the Court’s blossoming mitigation jurisprudence. It predicts that unlike the post- Furman overhaul of capital punishment, the insufficient culpability problem is not amenable to tinkering and should result in judicial abolition.  Assistant Professor of Law, University of North Carolina School of Law. I owe thanks to Mark Bennett, Joseph Blocher, Jack Boger, Alfred Brophy, G. Ben Cohen, John Coyle, David Harris, Emily Hughes, Richard Myers, Charles Ogletree, Dana Remus, Zoe Robinson, Richard Rosen, Meredith Rountree, David Sklansky, Christopher Slobogin, and Carol Steiker. Thanks also to Justin Davis, Dawn Milam, Joey Polonsky, and especially to Lauren Demanovich for excellent research assistance. 1150 IOWA LAW REVIEW [Vol. 100:1149 INTRODUCTION ........................................................................... 1151 I. ARBITRARINESS AND DISCRIMINATION IN THE ASSESSMENT OF CRIME SEVERITY ARE NOT THE BIGGEST OBSTACLES TO A CONSTITUTIONALLY SOUND DEATH PENALTY ............................ 1155 A. T HE L IMITATIONS OF F OCUSING ON C RIME -B ASED A RBITRARINESS ..................................................................... 1155 1. Narrowing and Numerousness ................................... 1159 2. Meaningful Appellate Review ..................................... 1162 B. T HE L IMITATIONS OF F OCUSING ON C RIME -B ASED R ACE D ISCRIMINATION ................................................................... 1164 II. THE ORIGINS AND ASCENDANCY OF MITIGATION ....................... 1170 A. T HE E VOLUTION OF C APITAL M ITIGATION IN I NDIVIDUAL C ASES ................................................................................... 1171 1. Woodson v. North Carolina and the Emergence of Capital Mitigation ..................................................................... 1171 2. Taking the Mitigation Function Seriously ................. 1173 B. C ATEGORICAL E XCLUSIONS FOR I NSUFFICIENTLY C ULPABLE C LASSES OF O FFENDERS ....................................................................... 1178 III. INSUFFICIENT CULPABILITY: RULE OR EXCEPTION? .................... 1181 A. I NSUFFICIENT C ULPABILITY I S A W IDESPREAD P ROBLEM .......... 1181 B. T HE M YTH OF E XTREME C ULPABILITY ? ................................. 1189 IV. INSUFFICIENT CULPABILITY AS THE PATH TO JUDICIAL ABOLITION .................................................................................. 1195 A. T HE R EVERSE - FURMAN R OUTE .............................................. 1196 1. Arbitrariness ................................................................ 1196 2. Race Discrimination .................................................... 1200 B. T HE C ATEGORICAL E XEMPTION R OUTE .................................. 1202 CONCLUSION .............................................................................. 1207 2015] FORGETTING FURMAN 1151 INTRODUCTION Even the most heinous murder is not automatically death-eligible. The person who commits the crime must be someone with extreme culpability; in other words, the person must have “a consciousness materially more depraved than that of” the typical person who commits murder. 1 Juries are entrusted to determine on a case-by-case basis whether defendants exceed this extreme culpability threshold. 2 But juries do not—and cannot—succeed at reliably sorting out those offenders with functional impairments serious enough to render them insufficiently culpable for a death sentence. States routinely execute people with major functional impairments. Consider John Ferguson, a paranoid schizophrenic who became increasingly hostile and delusional after suffering a gunshot wound to the head; 3 or Daniel Cook, who endured years of sadistic sexual and physical abuse and later attempted to kill himself after numerous hospitalizations for depression; 4 or 18-year-old Richard Cobb, who “suffered brain damage” and had “serious emotional problems.” 5 Most of the last hundred people executed in America suffered from the aftermath of complex trauma, endured a serious mental illness, or had a significant intellectual impairment. 6 Some were not even old enough to buy a beer. 7 This insufficient culpability problem is the biggest obstacle to a constitutionally sound death penalty, and it is a fatal one. It is not, however, the theory most often advanced by scholars or relied upon by defense lawyers. Instead, Furman v. Georgia 8 remains the darling of capital punishment scholars and lawyers. 9 Furman described two specific concerns: arbitrariness, which is the absence of legitimate grounds for explaining which crimes result in a 1. Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (internal quotation marks omitted); see also Kennedy v. Louisiana, 554 U.S. 407, 420 (2008) (stating that capital punishment “must be limited to those offenders . . . whose extreme culpability makes them the most deserving of execution” (quoting Roper v. Simmons, 543 U.S. 551, 568 (2005) (internal quotation marks omitted))); Atkins v. Virginia, 536 U.S. 304, 319 (2002) (noting that “the culpability of the average murderer is [] insufficient to justify the most extreme sanction available to the State”). 2. See Roper , 543 U.S. at 572. This case-by-case approach does not extend to intellectually disabled offenders or juveniles. See id. at 551 (exempting juveniles from capital punishment); Atkins , 536 U.S. at 319 (exempting intellectually disabled persons from capital punishment). 3. Robert J. Smith et al., The Failure of Mitigation? , 65 HASTINGS L.J. 1221, 1240 (2014) (describing the mitigating evidence presented in the cases of 100 recently executed offenders). 4. Id. at 1246–47. 5. Id. at 1235–36. 6. Id. at 1228–29. 7. See id. at 1236–37 tbl.2. 8. Furman v. Georgia, 408 U.S. 238 (1972). 9. See, e.g. , James S. Liebman, Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963–2006 , 107 COLUM. L. REV. 1 (2007); David McCord, Judging the Effectiveness of the Supreme Court’s Death Penalty Jurisprudence According to the Court’s Own Goals: Mild Success or Major Disaster? , 24 FLA. ST. U. L. REV. 545 (1997); Carol S. Steiker & Jordan M. Steiker, Abolition in Our Time , 1 OHIO ST. J. CRIM. L. 323 (2003). 1152 IOWA LAW REVIEW [Vol. 100:1149 death sentence; and discrimination, which is the concern that race is a ground upon which one crime or another is deemed sufficiently serious. 10 Scholars and defense lawyers treat Furman as anchoring and prophetic. 11 By anchoring, I mean that commentators describe arbitrariness and discrimination in the assessment of crime severity as the most important obstacle to a fair death penalty. By prophetic, I mean that scholars and defense lawyers treat the Furman concerns as if the prospect of abolition rises or falls with their consideration. Indeed, a fair characterization of the bulk of modern capital punishment scholarship and litigation is that it seeks to establish that the concerns that motivated the Court to strike down the death penalty in 1972 necessitate the same result today. 12 Though misdirected, the focus on Furman is understandable. It remains difficult to determine why one eligible crime warrants death and another does not. 13 Studies continue to show that race influences how the death penalty is imposed. 14 Nonetheless, the shape and magnitude of crime-based arbitrariness and discrimination has shifted dramatically. The jury that decided Mr. Furman’s case received no guidance on how to assess whether he deserved the death penalty, and no standards governed that determination. 10. Furman , 408 U.S. at 309–10 (Stewart, J., concurring); see also infra Part I (discussing arbitrariness and discrimination and explaining their roles in the Furman concurring opinions). 11. See, e.g. , John D. Bessler, Tinkering Around the Edges: The Supreme Court’s Death Penalty Jurisprudence , 49 AM. CRIM. L. REV. 1913, 1941 (2012) (calling for judicial abolition because “despite all the efforts by legislators and the courts since Furman , the death penalty remains as arbitrary and as problematic as ever”); Liebman, supra note 9, at 121 (arguing that death sentencing today has “replicate[d] almost perfectly the arbitrary, capricious, and discriminatory patterns of death verdicts the Court condemned in Furman ”); Lincoln Caplan, The Random Horror of the Death Penalty , N.Y. TIMES (Jan. 7, 2012), http://www.nytimes.com/2012/01/08/opinion/ sunday/the-random-horror-of-the-death-penalty.html?_r=0 (concluding that the Court should abolish the death penalty because there is “powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime”); John Ingold, Lawyers for James Holmes Seek to Throw Out the Death Penalty , DENVER POST (Sept. 3, 2013, 12:44 PM), http://www.denverpost.com/breakingnews/ci_24005074/lawyers-james-holmes-seek-throw-out-death-penalty (noting that “lawyers for [James]...