Symposium: Furman’s Legacy: New Challenges to the Overbreadth of Capital Punishment

Fagan, Jeffrey

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a “fatal lottery,” with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County—the state’s largest county and location of the nation’s fifth largest city—were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo’s appeal. What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to “perform the ‘constitutionally necessary’ narrowing function at the stage of legislative definition” to prevent “a pattern of arbitrary and capricious sentencing.”

Nearly fifty years ago, in Furman v. Georgia, the U.S. Supreme Court cited these same conditions as violating the Eighth Amendment’s cruel and unusual punishment clause to rule the nation’s death penalty statutes unconstitutional. This overbreadth is exactly the opposite of the constitutional requirements set forth over fifty years ago in Furman and four years later in Gregg, seminal U.S. Supreme Court decisions that changed the landscape of capital punishment and created the architecture of the modern death penalty. These cases sought to avoid not only arbitrary but racist outcomes by narrowing capital punishment to a very small subset of cases.


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Columbia Human Rights Law Review

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May 5, 2022