Furman v. Georgia

Background

Since the ratification of the U.S. Constitution and the adoption of the Bill of Rights, support for the death penalty has waxed and waned. After World War II, abolitionist sentiment grew, and a number of state legislatures eliminated capital punishment. In the early 1960s, opponents of the death penalty turned to the courts, hoping that the success of constitutional litigation to rectify discrimination in other social and political institutions (e.g., cases involving school desegregation and reapportion-ment) would continue. In Robinson v. California (1962), the Supreme Court held that the Eighth Amendment's prohibition against cruel and usual punishment applied to the states, and in Witherspoon v. Illinois (1968), the Court held that a death sentence could not be carried out where the jury recommending it had been chosen by excluding “for cause” any prospective jurors who had “religious or conscientious scruples” against inflicting the death penalty. But in McGautha v. California (1971), the Court found no constitutional infirmity where the jury imposed the death penalty without any governing standards, even in unitary proceedings in which the jury determined both guilt and punishment. One month later, the Court granted certiorari in Furman v. Georgia (1971) and in three other cases (Aikens v. California, 1971; Jackson v. Georgia, 1971; and Branch v. Texas, 1971) to determine whether imposing and carrying out the death penalty in these cases (involving convictions for rape or murder) constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. (After certiorari was granted, but before the Court's decision in Furman v. Georgia, 1972, the Supreme Court of California declared that capital punishment in California was unconstitutional under the California Constitution and that the decision was fully retroactive. In light of this intervening decision, the U.S. Supreme Court dismissed certiorari in Aikens v. California, 1972.)

Opinion

In a one-paragraph per curiam opinion that offered neither an explanation of its decision nor guidance for state death penalty legislation, a sharply divided Supreme Court held that imposing and carrying out the death penalty “in these cases” (Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas) constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Each of the justices in the five-four majority wrote a separate opinion (totaling more than 230 pages in the United States Reports), and no single analysis prevailed. The positioning of the justices left open the possibility that capital punishment could be upheld if properly structured in its application.

Justices Brennan and Marshall found the infliction of the death penalty constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments. Justice Brennan's opinion explored the Framers' intent with respect to cruel and unusual punishment and set forth four principles for assessing the constitutional validity of challenged punishments: (1) “a punishment must not be [Page 306]so severe at to be degrading to the dignity of human beings,” (2) “the States must not arbitrarily inflict a severe punishment,” (3) “a severe punishment must not be unacceptable to contemporary society,” and (4) “a severe punishment must not be excessive.” Justice Marshall's concurrence focused on the origin and judicial history of capital punishment; argued that the average American citizen, if presented with all the facts regarding capital punishment, would “find it shocking to his conscience and sense of justice” and stated that “the measure of a country's greatness is in its ability to retain compassion in time of crisis.”

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