Furman v. Georgia

408 U.S. 238 (1972), argued 17 Jan. 1972, decided 29 June 1972 per curiam by vote of 5 to 4; Stewart, White, Douglas, Brennan, and Marshall each concurred separately; Burger, Blackmun, Powell, and Rehnquist dissented jointly and separately. The Supreme Court, for the first time, struck down the death penalty under the cruel and unusual punishment clause of the Eighth Amendment. A jury in Georgia had convicted Furman for murder, and juries in Georgia and Texas had convicted two other petitioners for rape. All three juries imposed the death penalty without any specific guides or limits on their discretion. The Supreme Court in McGautha v. California (1971) had previously held that such guidelines were unnecessary. All three petitioners were African‐American. Three justices for the majority found that jury discretion produced a random pattern among those receiving the death penalty and that this randomness was cruel and unusual. Two justices found capital punishment a per se violation of the Constitution.

More specifically, Justice William O. Douglas concluded that death was disproportionately applied to the poor and socially disadvantaged; he virtually equated the Eighth Amendment with equal protection values. Justice Potter Stewart argued that the failure of the legislature to call for a mandatory death sentence, coupled with the infrequent imposition and execution of death sentences, in practice made the penalty cruel and unusual in the same way that being struck by lightning is cruel and unusual. White insisted that the infrequency of execution prevented the penalty from serving as an effective deterrent and from consistently meeting social needs for retribution. For White the penalty's social irrationality made it cruel and unusual.

Justices William Brennan and Thurgood Marshall both concluded that the death penalty was per se cruel and unusual. Brennan found the punishment degrading to human dignity, arbitrarily severe, and unnecessary. Marshall attacked the penalty most directly, finding it excessive, unnecessary, and offensive to contemporary values.

The dissenters argued that the courts should not challenge legislative judgments about the desirability and effectiveness of punishments. They also pointed to opinion polls showing general public support for the penalty.

Furman halted all executions in those thirty‐nine states that sanctioned the death penalty. More than six hundred people waited on death row at the time. Furman also seemed to create three Eighth Amendment options: mandatory death sentences for crimes carefully defined by statute, development of guidelines to standardize jury discretion, and outright abolition. Of these, outright abolition was least likely, since majority of the justices acknowledged the validity of the retributive motive in punishment an only two condemned the penalty per se. But, like life and death themselves, the course of the law has taken unforeseen turns.

In Gregg v. Georgia (1976), the Court embraced a form of guided jury discretion, although the guidelines do not systematically reduce randomness. Juries sitting in the penalty phases of capital trials as prescribed by Gregg consider unique aggravating and mitigating circumstances in each case. This trend has effectively overruled Furman's holding because juries, even when they operate under statutory guidelines, consider unique circumstances. This process inevitably perpetuates inconsistencies in sentencing, but the Court no longer finds these inconsistencies constitutionally unacceptable.

See also Capital Punishment.

— Lief H. Carte

In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the U.S. Supreme Court struck down three death sentences, finding that they constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. At the time hailed as a victory for opponents of the death penalty, Furman actually helped states rewrite their death penalty laws to pass constitutional muster.

The death penalty was in widespread use at the time the Constitution was adopted. The Due Process Clauses of the Fifth and Fourteenth Amendments recognize the death penalty in phrases stating the government shall not deprive any person of "life, liberty, or property without due process of law" (emphasis added). Yet the Eighth Amendment prohibits "cruel and unusual punishments." The path to Furman was opened in the 1962 case Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758, where the U.S. Supreme Court ruled that the Cruel and Unusual Punishments Clause could be applied to the states through the Fourteenth Amendment. Opponents of the death penalty now had the opportunity to litigate in federal court the constitutionality of state death penalty cases.

Ironically, the use of the death penalty declined in the 1960s. Only two persons were executed in the United States between 1967 and the date of the Furman decision in 1972. Public opinion polls showed that a majority of U.S. citizens were opposed to capital punishment.

Furman arose out of the convictions and death sentences of three African American men. William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape. The juries in these cases were not mandated by law to vote for the death penalty, nor were they given specific criteria to evaluate in making their penalty decisions.

The U.S. Supreme Court typically issues its decisions with a majority opinion written and signed by one the justices. On rare occasions the Court will issue a per curiam decision, which takes the form of a brief, unsigned opinion. A per curiam decision does not have as much precedential value as a signed opinion, as it signifies that the Court was deeply divided over the reasons that went into its ultimate decision to either affirm or reverse the lower court.

Furman was issued as a per curiam decision, on a 5-4 vote to reverse the death sentences. All nine justices wrote a separate opinion to articulate their reasoning. Though five justices voted to reverse the death sentences, their concurring opinions revealed that it was a shaky coalition. Justices William O. Douglas, William J. Brennan, Jr., and Thurgood Marshall doubted that any application of the death penalty could avoid being a cruel and unusual punishment.

Justice Douglas concluded that the death penalty was disproportionately applied to people who were poor and socially disadvantaged. This disproportion suggested that the Equal Protection Clause of the Fourteenth Amendment must be applied to strike down the death penalty because any inequality of application was cruel and unusual punishment. Douglas's opinion raised the possibility that proportionate application would make capital punishment constitutional.

Justices Brennan and Marshall staked out an absolutist position, finding the death penalty per se cruel and unusual punishment, given the "evolving standards of decency" they saw in contemporary U.S. society. This meant that no matter the fact situation, no matter the proper application of due process and equal protection, capital punishment was inherently unconstitutional.

The most influential opinion came from JusticePotter Stewart:

The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.

Stewart held that because death was different from any other punishment, it had to be administered rationally and fairly. He rejected the absolutist position of Brennan and Marshall, yet still voted to reverse the penalties of Furman, Jackson, and Branch because he believed their death sentences were imposed capriciously.

Stewart looked at the circumstances surrounding the imposition of the three death sentences. The juries in these cases had been given unbridled discretion to do what they wished in deciding whether to impose capital punishment. The result, in Stewart's view, was that the death penalty was "wantonly and … freakishly imposed." These death sentences were "cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Justice Byron R. White took a slightly different tack, concluding that the infrequency of execution prevented the penalty from serving as an effective deterrent and from consistently meeting legitimate social needs for retribution.

Chief Justice Warren E. Burger dissented, as did Justices Harry A. Blackmun, Lewis F. Powell, Jr., and William H. Rehnquist. The dissenters argued that the Court was straying into an area properly delegated to the judgment of state legislatures. The private opinions of justices about the morality of capital punishment, they opined, should not be presented as public policy in a court of law. They also pointed out that recent polls showed that public opinion now supported the death penalty.

The Furman decision stopped all executions then pending in the thirty-nine states that authorized the death penalty. More than six hundred persons were awaiting execution at the time. Faced with a splintered Supreme Court decision, states had three options: develop mandatory death sentences for crimes that were carefully defined by statute, develop jury guidelines to reduce juror discretion, or abolish capital punishment.

The state of Georgia chose to develop guidelines for jurors. Once a person is convicted in a capital trial, the jury must determine, in the penalty phase, whether any unique aggravating and mitigating circumstances should be considered before the court decides whether to impose a death sentence. In 1976 the U.S. Supreme Court upheld these jury guidelines in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859. With the Gregg decision, the four-year moratorium on the death penalty ended.

See: incorporation doctrine.

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Furman v. Georgia
Supreme Court of the United States
Argued January 17, 1971 Decided June 29, 1972
Full case name	William Henry Furman v. State of Georgia
Citations	408 U.S. 238 (more) 92 S. Ct. 2726; 33 L. Ed. 2d 346; 1972 U.S. LEXIS 169
Prior history	Certiorari granted (403 U.S. 952)
Subsequent history	Rehearing denied (409 U.S. 902)
Holding
The arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, and constitutes cruel and unusual punishment.
Court membership
Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan, Jr. Potter Stewart · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell, Jr. · William Rehnquist
Case opinions
Majority	none
Concurrence	Douglas
Concurrence	Brennan
Concurrence	Stewart
Concurrence	White
Concurrence	Marshall
Dissent	Burger, joined by Blackmun, Powell, Rehnquist
Dissent	Blackmun
Dissent	Powell, joined by Burger, Blackmun, Rehnquist
Dissent	Rehnquist, joined by Burger, Blackmun, Powell
Laws applied
U.S. Const. amends. VIII, XIV

Wikisource has original text related to this article: Furman v. Georgia

Furman v. Georgia, 408 U.S. 238 (1972) was a United States Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty. The Court consolidated Jackson v. Georgia and Branch v. Texas with the Furman decision, and thus also invalidated the death penalty for rape. The court had also intended to include the case of Aikens v. California, but between the time Aikens had been heard in oral argument and a decision was to be issued, the Supreme Court of California decided in California v. Anderson that the death penalty violated the state constitution, thus the Aikens case was dismissed as moot since all death cases in California were overturned.

Contents 1 Background 1.1 Holding 2 Analysis 3 Concurrences 4 Dissents 5 Aftermath 6 See also 7 Further reading 8 External links

Background

In the Furman case, the victim awoke in the middle of the night to find William Henry Furman burgling his house. At trial, in an unsworn statement allowed under Georgia criminal procedure, Furman said that while trying to escape, he tripped and the weapon he was carrying fired accidentally, killing the victim. This contradicted his prior statement to police that he had turned and blindly fired a shot while fleeing. In either event, because the shooting occurred during the commission of a felony, Furman would have been guilty of murder and eligible for the death penalty under then-extant state law. Furman was tried for murder and was found guilty based largely on his own statement. He was sentenced to death.

Holding

In a 5-4 decision, the Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. In over two hundred pages of concurrence and dissents, the justices articulated their views on this controversial subject. Only Justices Brennan and Marshall believed the death penalty to be unconstitutional in all instances. Other concurrences focused on the arbitrary nature with which death sentences have been imposed, often indicating a racial bias against black defendants. The Court's decision forced states and the national legislature to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.

Analysis

The Supreme Court split five to four in overturning the imposition of the death penalty in each of the consolidated cases. The majority could not agree as to a rationale and did not produce a controlling opinion. Instead, each of the nine justices wrote separately, with none of the five justices constituting the majority joining in the opinion of any other.

Justice Potter Stewart, as one of the majority, wrote that:

"These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Concurrences

• Justices Byron White and William O. Douglas expressed similar concerns about the apparent arbitrariness with which death sentences were imposed under the existing laws.

• Justices Brennan and Marshall concurred on the grounds that the death penalty was "cruel and unusual punishment" proscribed by the Eighth Amendment as incompatible with the evolving standards of decency of a contemporary society. Because the opinions of Justices Stewart and White were the narrowest, finding only that the death penalty as applied under the statutes in existence at the time was cruel and unusual, theirs are often considered the controlling majority opinions.

Dissents

Chief Justice Burger and Justices Harry Blackmun, Lewis F. Powell, and William H. Rehnquist, each appointed by President Richard Nixon, dissented. They argued that capital punishment had always been regarded as appropriate under the Anglo-American legal tradition for serious crimes and that the text of the Constitution implicitly authorized United States death penalty laws because of the reference in the Fourteenth Amendment to the taking of "life."

Aftermath

In the following four years, 37 states enacted new death penalty laws aimed at overcoming the court's concerns about arbitrary imposition of the death penalty. Several statutes mandating bifurcated trials, with separate guilt-innocence and sentencing phases, and imposing standards to guide the discretion of juries and judges in imposing capital sentences, were upheld in a series of Supreme Court decisions in 1976, led by Gregg v. Georgia. Other statutes enacted in response to Furman which mandated imposition of the death penalty upon conviction of certain crimes were struck down in cases of that same year.

See also

• List of United States Supreme Court cases, volume 408
• Capital Jury Project
• McCleskey v. Kemp

Further reading

• Smith, Stephen F. (2008). "The Supreme Court and the Politics of Death". Virginia Law Review 94 (2): 283–383. http://www.virginialawreview.org/articles.php?article=213. 

External links

• Furman v. Georgia, 408 U.S. 238 (1976) (full text with links to cited material)

• Works related to Furman v. Georgia at Wikisource

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