Capital Punishment: Legal Aspects

In a startling turnaround, however, the very next year the Supreme Court heard the very same challenge to American capital sentencing practices, but this time under the Eighth Amendment's proscription of cruel and unusual punishments. Once again, abolitionist lawyers argued that standardless capital sentencing procedures violated the federal constitution—and this time, they prevailed. The Supreme Court's ruling in (Furman v. Georgia, 408 U.S. 238 (1972)), had the effect of abolishing the death penalty as it was then administered in the United States, invalidating the statutes of thirty-nine states, the District of Columbia, and the federal government.

But the reasoning behind the Court's landmark ruling was far from clear. The Court was closely divided—5 to 4—and each of the five Justices in the majority authored his own opinion and refused to join the opinion of any other Justice. Only two Justices—William J. Brennan and Thurgood Marshall—were convinced that the death penalty in all cases constituted cruel and unusual punishment. The other Justices in the majority were more concerned with the procedures used to impose the death penalty and with the patterns of its application. The fact that so many defendants charged with serious felonies were eligible for the death penalty while so few were actually sentenced to death led Justice Potter Stewart to compare receiving the death penalty with being struck by lightning. Justice William O. Douglas feared that the application of the death penalty was not merely arbitrary, but actually discriminatory against racial minorities, the poor, and the politically unpopular. The absence of any guidance to sentencing juries to prevent such questionable patterns of imposition, concluded Justice Byron White, demonstrated the lack of legislative will behind the death penalty. The dissenting Justices, who also produced a range of separate opinions, objected that the majority was using the Eighth Amendment to usurp a legislative function and speculated that state legislatures might be able to remedy their flawed capital sentencing schemes.

Just as many believed that the Supreme Court's rejection of due process challenges to capital punishment spelled the end of constitutional abolition, many believed that the Court's decision in Furman spelled the end of capital punishment in America. This latter belief proved as ill-founded as the former. Furman created an angry backlash in many states, and thirty-five states almost immediately redrafted their capital sentencing schemes in order to attempt to salvage the death penalty in the wake of the Court's constitutional ruling. Four years after its seemingly final pronouncement in Furman, the Court granted review to consider five of the new statutes, from the states of Florida, Georgia, Texas, Louisiana, and North Carolina.