FURMAN V. GEORGIA

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. Hailed, at the time, as a victory for opponents of the death penalty, Furman actually helped states rewrite their death penalty laws to pass constitutional muster.

The path to Furman began in 1962 with robinson v. california, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758. In Robinson, 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 saw this ruling as an opportunity to litigate the constitutionality of state death penalty cases in federal court.

Furman centered on the convictions and death sentences of three African American men: William Henry Furman was convicted in Georgia for murder, Lucius Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape. The juries in each of the 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 issued a per curiam opinion, on a 5–4 vote to reverse the death sentences. The 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 signifies that the Court was deeply divided over the reasons that went into its ultimate decision to either affirm or reverse the lower court.

All nine justices wrote a separate opinion to articulate their reasoning. Although 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 Justice potter 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.

The Furman decision stopped all executions then pending in the 39 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 and, according to some, launched the modern era of capital punishment.

further readings

Baldus, David C., et al. 1998. "Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia." Cornell Law Review 83 (September): 1638–770.

Banner, Stuart. 2002. The Death Penalty: An American History. Cambridge, Mass.: Harvard Univ. Press.

Sarat, Austin. 1998. "Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics." Law and Contemporary Problems 61 (autumn): 5–28.

cross-references

Incorporation Doctrine.

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