A Reflection on Furman

A Reflection on Furman
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A Reflection on Furman

Patrick E. Higginbotham

34 Am. J. Crim. L. 199 (2007).

    Much of the legal assault upon capital punishment that led to Furman v. Georgia pointed to the infrequent imposition of the death penalty in general.  It also pointed to the death penalty’s disproportionate application to racial minorities and the poor.  The opposition movement’s major thrust was that the capital punishment system was capricious.  They urged that remedial responses should include a narrowing of jury discretion in sentencing.

    There has been much debate over the range of discretion allowed a Texas jury in the penalty phase of a capital case.  This give and take has proved to be less an exercise in implementing Furman than a struggle between prosecutors and defense counsel for trial advantage.  In this competition, prosecutors have been more effective.  Therefore, the large difficulty is the quality of representation at trial.  The trial of a capital case requires more than a skill set adequate to many other criminal cases.  It requires a command of procedure and substance unique to capital cases.

    In Texas, the most active state in the carrying out of death sentences, we have often failed to live up to our ideal of justice.  The failure of lawyers, judges, prosecutors, and defense counsel to perform as professionals is now well-documented.  While this is a sad story, there is some good news.  Progress is being made in training trial counsel and judges, and law-related member organizations are working hard to regain their footing.  Much remains to be done, but the good news is that the shortcomings are documented and their treatment is underway.

Keywords: Furman v. Georgia, Antiterrorism and Effective Death Penalty Act (AEDPA), death penalty, capital cases, state criminal convictions, Stone v. Powell, Powell Committee, habeas corpus, federal habeas law, successive writs, Brown v. Allen, habeas jurisdiction, grants of certiorari, capital punishment, McGautha v. California, mandatory death sentences, jury discretion, Apprendi v. New Jersey, right to jury trial, segmentation of trial, Eighth Amendment, Sixth Amendment, constitutional values, Jurek v. Texas.

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