About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

91 Mich. L. Rev. 1643 (1992-1993)
Legitimating Death

handle is hein.journals/mlr91 and id is 1667 raw text is: LEGITIMATING DEATH Louis D. Bilionis * INTRODUCTION: RECALLING FURMAN On June 29, 1992, few people were aware that the day marked the twentieth anniversary of Furman v. Georgia. 1 Being an Eighth Amendment enthusiast, I thought it an appropriate occasion to reflect. Time may alter Furman's legal legacy, but it will never rob the decision of its decisive immediate impact. After all, it is not often that a single sweep of the judicial pen spares hundreds of lives, as Furman did when it declared the prevailing system of capital punishment un- constitutional and cleared the nation's death rows. Nor should the passage of time lead us to underestimate the magnitude of the consti- tutional project the Court undertook in Furman. Prior to Furman, the 1971 decision in McGautha v. California2 had dampened any hopes that the Supreme Court would unfurl the federal constitutional banner and lead the charge for reform, despite the abolitionist litiga- tion campaign of the 1960s which exposed the illegitimate state of the death penalty. Yet McGautha, as it turned out, merely set the stage for one of constitutional law's sweeter ironies. Just fourteen months later, the Burger Court - hardly known for its belief in the validity of constitutional adjudication as an agent of social change - reversed course to embark upon the single most expansive constitutional crimi- nal procedure program in the Court's history. Working from a virtu- ally clean slate, the Furman Court unleashed the Eighth Amendment's Cruel and Unusual Punishments Clause, fashioning the beginnings of a rich normative vision that has initiated and sustained a nationwide reform of the system of capital punishment.3 * Associate Professor of Law, University of North Carolina at Chapel Hill. A.B. 1979, University of North Carolina at Chapel Hill; J.D. 1982, Harvard. - Ed. Marshall Dayan, Don Hornstein, Arnold Loewy, Mike Mello, Barry Nakell, and Rich Rosen offered helpful comments for which I am grateful. Special thanks go to Ann Hubbard for her support, her patience, and her countless valued insights. 1. 408 U.S. 238 (1972). As fate would have it, the day's significance in constitutional history was secured shortly after 10:00 a.m., when the Court handed down the anxiously awaited deci- sion in Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). 2. 402 U.S. 183 (1971) (holding that Due Process Clause does not prohibit giving jury unbri- dled discretion to sentence a murderer to death). 3. For a discussion of the Court's about-face from McGautha to Furman, see Louis D. Bilionis, Moral Appropriateness, Capital Punishment, and the Lockett Doctrine, 82 J. CRIM. L. & CRIMINOLOGY 283, 331-32 & n.156 (1991). Stressing Furman's pathbreaking significance implies no slight of the Warren Court's selec- 1643

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most