Furman v. Georgia: 1972

Douglas reviewed the history of capital punishment under the English common law, from the Norman Conquest in 1066 through the American colonial period and up to the ratification of the Constitution. He noted that English law had evolved to consider the death penalty unfair when applied selectively to minorities, outcasts, and unpopular groups. In America, the Court had already held that discriminatory enforcement of the law violates the equal protection clause of the Fourteenth Amendment. Therefore, if a death penalty statute was applied in a discriminatory manner, it was unfair and constituted cruel and unusual punishment. For Furman, the death penalty was unfair because there had not been enough protection for him at trial. He had gotten a quick one-day trial and he was black, poor, uneducated, and mentally ill:

Justice Harry Blackmun opposed abolition of the death penalty in Furman v. Georgia (Archive Photos)

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.

It would seem to be incontestable that the death penalty inflicted on one defendant is "unusual" if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.

The rest of Douglas' opinion reads almost like a professional case study of prisoner treatment throughout the United States. Based on surveys and statistics drawn from a variety of sources, Douglas concluded that the death penalty was disproportionately applied to blacks, the poor, and other groups who are at a disadvantage in society:

Former Attorney General Ramsey Clark has said, "It is the poor, the sick, the ignorant, the powerless and the hated who are executed." One searches our chronicles in vain for the execution of any member of the affluent strata of this society.

Justices William J. Brennan, Jr., and Thurgood Marshall, who had voted with Douglas, wrote opinions that called for the complete abolition of the death penalty for all crimes and under any circumstances. They were in the minority, however, and so Douglas' opinion embodied the impact of the Court's decision: the death penalty could still be imposed, but only if the law bent over backwards to make sure that people like Furman were protected.

While Furman v. Georgia was hailed as a landmark decision protecting minorities and other historically oppressed groups, it didn't give the states much guidance on what they had to do to make their death penalty statutes comply with the Eighth Amendment. In the 1976 case of Gregg v. Georgia, the Court upheld the death penalty imposed on a convicted murderer under a revamped Georgia statute that required sentencing hearings and other protective procedures. Most states with death penalty statutes have followed Gregg and modified their laws so there are procedures to protect the poor, minorities, the mentally ill, and other groups. Further, most states have repealed the death penalty for accidental killings and other crimes less serious than cold-blooded intentional murder.

Furman v. Georgia did not forbid capital punishment, but it did place strict requirements on death penalty statutes, at both the state and federal levels, based on the Eighth Amendment.