The Handy Law Answer Book. David L Hudson

Furman v. Georgia (1972)

      All nine justices wrote separately in Furman v. Georgia. Five justices voted to invalidate the death penalty, while four justices voted to uphold it. Below are selections from each justice’s opinion.

      Justice William Douglas (majority): “Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.”

      Justice William Brennan (majority): “Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity.”

      Justice Potter Stewart (majority): “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

      Justice Byron White (majority): “That conclusion, as I have said, is that the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”

      Justice Thurgood Marshall (majority): “There is but one conclusion that can be drawn from all of this—i.e., the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but it is persuasive…. In addition, even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.”

      Chief Justice Warren Burger (dissenting): “In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly ‘cruel’ in the constitutional sense.”

      Justice Harry Blackmun (dissenting): “Although personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.”

      Justice Lewis Powell (dissenting): “In terms of the constitutional role of this Court, the impact of the majority’s ruling is all the greater because the decision encroaches upon an area squarely within the historic prerogative of the legislative branch—both state and federal—to protect the citizenry through the designation of penalties for prohibitable conduct. It is the very sort of judgment that the legislative branch is competent to make and for which the judiciary is ill-equipped.

      Justice William Rehnquist (dissenting): “The task of judging constitutional cases imposed by Art. III cannot for this reason be avoided, but it must surely be approached with the deepest humility and genuine deference to legislative judgment. Today’s decision to invalidate capital punishment is, I respectfully submit, significantly lacking in those attributes.”

      What caused the U.S. Supreme Court to change course and uphold death penalty statutes only a few years after its Furman decision?

      The Furman decision caused many states to pass new death penalty statutes that would provide more guidance to jurors on whether a defendant should be sentenced to death. Georgia’s new statute required jurors to focus on aggravating and mitigating factors associated with the capital crime. In 1976, the U.S. Supreme Court ruled 7 to 2 that this Georgia law was constitutional in Gregg v. Georgia. Because it focused on these aggravating and mitigating factors, Justice Potter Stewart wrote: “No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines.” Stewart wrote that the new statute focused the jury on “the particularized nature of the crime and the particularized characteristics of the individual defendant.” Since Gregg, the U.S. Supreme Court has never ruled that the death penalty is per se unconstitutional. Only Justices William Brennan and Thurgood Marshall dissented.

      What are some major death penalty decisions since Furman v. Georgia (1972)?

      The following explains some of the most important Supreme Court rulings about the death penalty since 1972.

       Furman v. Georgia (1972)

      Decision: The U.S. Supreme Court rules 5 to 4 that Georgia’s death penalty scheme violates the Eighth Amendment. Three justices in the majority attach the death penalty in general, while Justices Potter Stewart and Lewis Powell focus on the fact that the death penalty law does not give jurors sufficient guidance as to which capital defendants should receive the ultimate punishment. Stewart writes that “these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” This ruling led to a halt on all executions in the country until 1977.

       Gregg v. Georgia (1976)

      Decision: The Court rules that some death penalty statutes are constitutional because they provide sufficient guidance to the jury in terms of aggravating and mitigating factors. The Court writes that “the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.”

       Roberts v. Louisiana (1976)

      Decision: The Court strikes down a Louisiana statute that required the death penalty for defendants who kill police officers and did not allow those defendants to offer any mitigating factors.

       Woodson v. North Carolina (1976)

      Decision: The Court strikes down a North Carolina statute that required the death penalty for all criminal defendants convicted of first-degree murder.

       Gilmore v. Utah (1976)

      Decision: The Court rejects the constitutional claims of Utah inmate Gary Gilmore. He becomes the first person executed in the United States since the Furman decision. His execution becomes memorialized in Norman Mailer’s The Executioner’s Song.

       Coker v. Georgia (1977)

      Decision: The Court rules that a sentence of death for rape is excessive punishment under the Eighth Amendment. The Court writes: “Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder.”

       Lockett v. Ohio (1978)

      Decision: The Court invalidates Ohio’s death penalty statute because it restricts mitigating evidence during the sentencing phase. The Court writes: “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”

       Adams v. Texas (1980)

      Decision: The Court invalidates a Texas inmate’s death sentence because the trial judge dismissed prospective jurors who said they would be “affected” by the possibility of imposing the death penalty. The Court writes that “a juror may not be