100 Iowa L. Rev. 1149 (2015) 

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Abstract

Furman v. Georgia is the darling of death penalty scholars and defense lawyers. Indeed, a fair characterization of the bulk of capital punishment scholarship and litigation is that it seeks to establish that the concerns that motivated the Court to strike down the death penalty in 1972-namely, arbitrariness and discrimination in the assessment of crime severity-necessitate the same result today. But these commentators have hitched themselves to the wrong doctrinal star. The better argument against the constitutionality of capital punishment is that the death penalty is imposed with regularity upon offenders with insufficient personal culpability. These are people with major functional impairments-severe mental illness, intellectual deficiencies, and other serious cognitive and behavioral deficits-that rival the impairments that death-ineligible intellectually disabled and juvenile offenders endure. This Article explains why commentators should forget about Furman and focus instead on further development of the Court's blossoming mitigation jurisprudence. It predicts that unlike the post-Furman overhaul of capital punishment, the insufficient culpability problem is not amenable to tinkering and should result in judicial abolition.