The Twenty-First Century Death Penalty and Paths Forward
![handle is hein.journals/miscollr37 and id is 96 raw text is:
KEYNOTE
THE TWENTY-FIRST CENTURY DEATH PENALTY AND PATHS
FORWARD
Jeffrey Omar Usman*
In the wake of the United States Supreme Court's 1972 decision in Furman
v. Georgia,' many, including even then sitting members of the Supreme Court,
believed that the death penalty had been imposed for the last time in the United
States.2 That assumption proved to be mistaken, and four years after Furman,
the United States Supreme Court would bless the restoration of the death penalty
by the states with its decision in Gregg v. Georgia.3 Furman thus became not
the case that ended the death penalty but instead a rejection of arbitrary
imposition thereof.4 With the restoration of the death penalty, the central
fulcrum of post-Gregg constitutional application of the death penalty has become
replacement of pre-Furman arbitrariness with a post-Gregg philosophy of guided
discretion.5 In distinguishing among those defendants who were sentenced to
death and those were not, the pre-Furman approach manifested in the states had
Associate Professor of Law, Belmont University College of Law. This article was prepared in
connection with a symposium hosted by the Mississippi College Law Review. I offer my congratulations to the
Mississippi College Law Review on its spring 2018 symposium, which addressed the challenging but important
topic of capital punishment. The law review members conducted the event in an excellent manner that
generated a fruitful discussion with voices heard from a variety of perspectives in what proved to be a good
civil discussion. My thanks to the editors of the Mississippi College Law Review for their editorial assistance
with special thanks to Loden Walker, Mary Hope Bryant, Kyle Usner, Brianna Bailey, Stephen Marsalis,
Michael Primack, Amber Wheeler, Lamar Yeates, and Claire Williams. My thanks also as always to Elizabeth
Usman, Emmett Usman, and Abigail Usman.
1. Furman v. Georgia, 408 U.S. 238 (1972).
2. Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L. REV. 1, 45 (2007).
3. William W. Berry III, Promulgating Proportionality, 46 GA. L. REV. 69, 79 (2011).
4. See, e.g., Susan A. Bandes, All Bathwater, No Baby: Expressive Theories of Punishment and the
Death Penalty, 116 MICH. L. REV. 905, 906 (2018) (But instead of finding the death penalty itself
unconstitutional, the Court in Furman focused on the procedural flaws that produced an 'arbitrary and
capricious' death penalty. This approach left a crack in the door, and the states rushed through with newly
crafted statutes); GEORGE E. Dix & JOHN M. SCHMOLESKY, 43A TEX. PRAC., CRIMINAL PRACTICE AND
PROCEDURE § 49:7 (3d ed. 2017) ([a]rbitrary infliction of the death penalty was the primary vice of the system
prior to Furman according to the controlling opinions in that case); Mark J. MacDougall & Karen D.
Williams, The Federal Death Penalty Scheme Is Not A Modelfor State Reform of Capital Punishment Laws, 67
AM. U. L. REV. 1647, 1656 (2018) (noting that [i]n the 1972 case of Furman v. Georgia, the Supreme Court
halted imposition of the death penalty temporarily by ruling that capital punishment was being administered in
an arbitrary fashion and thus constituted cruel and unusual punishment in violation of the Eighth Amendment).
5. See, e.g., James R. Acker, Snake Oil with A Bite: The Lethal Veneer of Science and Texas's Death
Penalty, 81 ALB. L. REV. 751, 754 (2018) (noting that in Gregg v. Georgia, the Court gave its approval to
revised legislation that incorporated standards designed to limit and guide capital sentencing discretion); John
D. Bessler, The Abolitionist Movement Comes of Age: From Capital Punishment As A Lawful Sanction to A
Peremptory, International Law Norm Barring Executions, 79 MONT. L. REV. 7, 27 (2018) (Now, in the post-
Gregg v. Georgia world, the decision-making of American juries is characterized by a legal process known as
'guided discretion').](ViewImageLocal?handle=hein.journals/miscollr37&div=16&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Twenty-First Century Death Penalty and Paths Forward
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most