Problems of racial discrimination in the imposition of capital sentences, disclosure of misconduct by prosecutors and police, inconsistency in the quality of defense afforded capital defendants, exoneration of death row inmates due to newly available DNA testing, and, most recently, controversies surrounding the potential for cruelty in the execution process itself continue to complicate views about the morality, legality, and practicality of reliance on capital punishment to address even the most heinous of homicide offenses. Despite repeated efforts by the Supreme Court to craft a capital sentencing framework that ensures that death sentences be imposed fairly in light of the offenses committed and character of the offenders, perhaps the most profound questioning about capital punishment policy has come from within the Court itself. Capital punishment remains a difficult problem both in terms of constitutional criminal procedure and sound public policy. It will likely remain so for some time to come based on the Court's unwavering commitment to its implicit holding in Furman v. Georgia that execution does not constitute cruel and unusual punishment under the Eighth Amendment.
J. Thomas Sullivan, Furman, After Four Decades, 8 U. Mass. L. Rev. 164 (2013).