4 minute read

Furman v. Georgia

Further Readings

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."

Elmer Branch, one of the plaintiffs in Furman v. Georgia, holds out a newspaper to another death row inmate after the Supreme Court held that the death penalty constituted cruel and unusual punishment.

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.


Incorporation Doctrine.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1963 to 1972