Rather than fairness, the result primarily has been complexity. In Furman, for example, Justice White posed the question whether one could make a meaningful distinction between the cases in which the death penalty was imposed and those in which the defendant was eligible for the death penalty but it was not imposed. Whether intentional or unintentional, curable or incurable, the structure currently in place offers no serious support for consistency in judgment. The huge discrepancies in the number of death sentences imposed and the number of executions across state jurisdictions indicate to me that arbitrariness has not decreased. The culture of the death penalty is very different in Texas and Alabama than it is in New Jersey or New York.
Some courts now treat the affirming of death sentences as routine.
However, perhaps we can make some inferences from post-Furman statutes. Two structural legislative changes occurred post-Furman. Second, capital trials became bifurcated in all jurisdictions. But the post-Furman legislative reforms accomplished little else. The class of death penalty-eligible murders remains quite broad.