Risking the Eight Amendment: Arbitrariness, Juries, and Discretion in Capital Cases

Abstract

This Article argues that the stalled dialogue over the U.S. Supreme Court's administration of capital punishment suffers from a fundamental misunderstanding of the first principles of the Eighth Amendment, Although the Court in Furman v. Georgia articulated an Eighth Amendment substantive right against the arbitrary imposition of death sentences, the Court later recast Furman to require procedures that merely reduced a substantial risk of arbitrariness. Instead, Furman mandates procedures that expose arbitrariness. The best vehicle for this is a review of jurors' reasons for , imposing death in an individual case. Although there are political and practical hurdles to mining the jurors' reasons for imposing death, they are far from insurmountable. Absent a moratorium, this Article advocates change that informs and exposes the process of death. As to impossibility, all I can say is that nothing is more true of [the legal) profession than that the most eminent among them, for 100 years, have testified with complete confidence that something is impossible which, once it is introduced, is found to be very easy of administration. —F. Frankfurter