Law Professors Discuss History of Death Penalty in America at Harvard Law School Library Panel

Legal scholars discussed the history of the death penalty in the United States following the landmark Supreme Court ruling Furman v. Georgia at a Harvard Law School Library panel Wednesday afternoon.

Roughly 30 people attended the discussion, titled “Fifty Years After Furman: The Death Penalty in America” and moderated by HLS professor Carol S. Steiker ’82. The panelists included Mugambi Jouet, an associate law professor at the University of Southern California; Corinna B. Lain, a law professor at the University of Richmond; and Michael Meltsner, a law professor at Northeastern University.

The panelists discussed the consequential 1972 Supreme Court case Furman v. Georgia, which concerned a burglar whose gun accidentally fired as he fled, killing a resident of the house. Furman was charged with murder and later sentenced to the death penalty.

The Supreme Court ruled 5-4 that the death penalty for this crime constituted “cruel and unusual punishment” under the Eighth Amendment of the Constitution.

During the panel, Jouet said Furman today is known for demonstrating the “arbitrary” and “capricious” nature of capital punishment in the U.S.

Still, this is not what was actually argued in the Court’s briefs, Jouet said, which ultimately made a “humanistic argument” against the death penalty.

“Challenged in the briefs was more based off evolving standards of decency,” Jouet said. “The argument was not fundamentally about race or arbitrariness and effectiveness.”

Lain said public opinion had a strong influence on the Supreme Court’s ruling, noting that the public was split on the issue.

“In November 1971, 49 percent of the public supported the death penalty,” Lain said, citing a historic Gallup poll.

At the time of the ruling, the Legal Defense Fund, a national advocacy organization, had successfully advocated for a moratorium on capital punishment across the U.S.

“When the U.S. Supreme Court considered the case in Furman in 1972, it had already been five years with no executions in the United States,” Lain said.

In the decades following the ruling, many states reconsidered instituting the death penalty, Lain said in an interview following the panel.

“Why did 35 states — even states that abolished it themselves — say, ‘We want the death penalty back?’” Lain said.

Lain said the states’ reconsiderations came from a “tension between mass incarceration and the death penalty.”

“Texas was the last state to adopt life without parole,” Lain said. “It fought against life without parole, not because it didn’t love punitivism, but because it was afraid it would siphon off death cases, which it did.”

In an interview following the panel, Meltsener called for the end of the death penalty.

“People’s fundamental constitutional and human rights, including human dignity, are inalienable, should not depend on public opinion polls,” Meltsener said. “That’s why death penalty can and should be abolished irrespective of public opinion.”