Little Furmans Everywhere: State Court Intervention and the Decline of the American Death Penalty

Abstract

In 1972, the California Supreme Court in People v. Anderson and the U.S. Supreme Court in Furman v. Georgia abolished the death penalty pursuant to state and federal constitutional law, respectively. Both decisions evoked enormous popular backlash in an era of rising violent crime rates, including the Charles Manson murders in California and an increased threat of airline hijacking nationwide (and worldwide). In California, the Anderson decision was superseded that same year by a ballot initiative that amended the California constitution to ensure the constitutionality of capital punishment. At the federal level, the U.S. Supreme Court revisited its Furman decision four years later in Gregg v. Georgia, re-authorizing the death penalty nationwide with its validation of new capital statutes that purported to guide the exercise of discretion by capital sentencers.

Such speedy about-faces might be seen as evidence of the limits of constitutional intervention, at least with regard to topics as “hot” as the death penalty. Under this view, if the political branches of government are not ready to act, courts cannot get out too far ahead without facing backlash, as observers have often commented with regard to other hotbutton issues like school integration and abortion rights. And if the political branches are ready to act without a judicial mandate, then constitutional intervention by courts is superfluous.