Furman v. Georgia

Furman v. Georgia
Furman v. Georgia
	Supreme Court of the United States
Argued January 17, 1972; Decided June 29, 1972
Full case name	William Henry Furman v. State of Georgia
Citations	408 U.S. 238 (more) 92 S. Ct. 2726; 33 L. Ed. 2d 346; 1972 U.S. LEXIS 169
Case history
Prior	Cert. granted, 403 U.S. 952.
Subsequent	Rehearing denied, 409 U.S. 902.
Holding
	The arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, and constitutes cruel and unusual punishment.
Court membership
	Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan Jr.; Potter Stewart · Byron White; Thurgood Marshall · Harry Blackmun; Lewis F. Powell Jr. · William Rehnquist
Case opinions
	Per curiam
Concurrence	Douglas
Concurrence	Brennan
Concurrence	Stewart
Concurrence	White
Concurrence	Marshall
Dissent	Burger, joined by Blackmun, Powell, Rehnquist
Dissent	Blackmun
Dissent	Powell, joined by Burger, Blackmun, Rehnquist
Dissent	Rehnquist, joined by Burger, Blackmun, Powell
Laws applied
	U.S. Const. amends. VIII, XIV
	Abrogated by
	Gregg v. Georgia (1976)

Furman v. Georgia, 408 U.S. 238 (1972), was a landmark criminal case in which the United States Supreme Court decided that arbitrary and inconsistent imposition of the death penalty violates the Eighth and Fourteenth Amendments, and constitutes cruel and unusual punishment. It was a per curiam decision. Five justices each wrote separately in support of the decision .^[1]^: 467–68 Although the justices didn’t rule that the death penalty was unconstitutional, the Furman decision invalidated the death sentences of nearly 700 people. The decision mandated a degree of consistency in the application of the death penalty. This case resulted in a de facto moratorium of capital punishment throughout the United States. Dozens of states rewrote their death penalty laws, most of which were upheld in the 1976 case Gregg v. Georgia.^[2]

The Supreme Court consolidated the cases Jackson v. Georgia and Branch v. Texas with the Furman decision, thereby invalidating the death penalty for rape; this ruling was confirmed post-Gregg in Coker v. Georgia. The Court had also intended to include the case of Aikens v. California, but between the time Aikens had been heard in oral argument and a decision was to be issued, the Supreme Court of California decided in California v. Anderson that the death penalty violated the state constitution; Aikens was therefore dismissed as moot, since this decision reduced all death sentences in California to life imprisonment.^[3]

Background

There were over 600 inmates on death when Furman was decided. Most states at that time did not allow the presentation of mitigating and aggravating evidence that today is a constitutionally required part of individualized consideration at sentencing.^[4]

In McGautha v. California, decided thirteen months before Furman, the Court held that due process did not require instructions to the jury about standards to guide sentencing in capital cases. The Court also rejected a sentencing phase where mitigating or aggravating evidence could be presented to the jury.^[5]

After McGautha the infrequency and apparent randomness of sentencing in capital cases raised concerns about arbitrary imposition of the death penalty and the potentially improper influence of factors like race and financial resources on sentencing outcomes.^[6]

Case history

William Henry Furman, Lucious Jackson and Elmer Branch were three petitioners sentenced to death for aggravated felonies. Furman was convicted of murder and sentenced to death. Jackson and Branch were convicted of rape (the victims were white, and in Branch's case 65 years old).^[7]

Supreme Court decision

The Court's one-paragraph per curiam opinion held that "the imposition of the death penalty...in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments."^[8]

A majority of Justices agreed that arbitrariness in capital sentencing violated the Eighth Amendment. However, the justices could not agree as to a rationale. There was not any signed opinion of the court or any plurality opinion as none of the five justices in the majority joined the opinion of any other. It was the longest set of opinions the Court had ever written, over 233 pages.^[8]

Per curiam opinion

Furman did not rule that the death penalty itself was unconstitutional. The median justices Potter Stewart and Byron White were concerned that erratic and arbitrary imposition of the death penalty violated the constitutional prohibition against cruel and unusual punishment. ^[9] Justice White said that the death penalty was so rarely imposed that it weakened the penological justification of deterrence.^[5]^[7]

Deterrence was not the only penological justification discussed in the opinions. Justice Stewart said retributive punishment was a constitutionally permissible "ingredient" of punishment (a view subsequently supported by only four Justices in the Gregg plurality opinion):^[8]

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment...When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they "deserve", then there are sown the seeds of anarchy—of self-help, vigilante justice and lynch law.

Justice Stewart was concerned the death penalty was being applied "capriciously".^[4] There was no good explanation for why jurors imposed the death sentence in the three cases before the Court but not other cases "just as reprehensible as these". In one of the most famous quotes from the case Justice Stewart said "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."^[8] If there was any identifiable basis for why the death penalty was imposed in these cases, it was "the constitutionally impermissible basis of race".^[6]

Three justices raised concerns about racial bias.^[10] Justice Douglas said :^[5]

It would seem to be incontestible 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 such a procedure that gives room for the play of such prejudices.

Justices William J. Brennan and Thurgood Marshall concluded that the death penalty was in itself "cruel and unusual punishment" because it was excessive, served no valid legislative purpose and was incompatible with the evolving standards of decency of a contemporary society.^[11] Marshall commented further on the possibility of wrongful execution, writing:

No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some.^[12]

Marshall said "Retribution for its own sake is improper" and based his reasoning on a deterrence theory of punishment concluding that "capital punishment is not necessary as a deterrent to crime in our society."^[5]

Dissents

Chief Justice Warren Burger and Justices Harry Blackmun, Lewis F. Powell, and William H. Rehnquist, each appointed by President Richard Nixon, dissented. They argued that a punishment provided in 40 state statutes (at the time) and by the federal government could not be ruled contrary to the so-called "evolving standard of decency". Blackmun and Burger also stated that they personally opposed the death penalty, and would vote against it, or "restrict it to a small category of the most heinous crimes", if on the state legislature, but that it was constitutional nonetheless.^[13] In his dissent, Burger wrote, "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".^[14]

Aftermath

The Supreme Court's decision marked the first time the Justices vacated a death sentence under the Eighth Amendment's Cruel and Unusual Punishment Clause, resulting in over 630 death sentences being vacated and reduced to life imprisonment.^[14]^[15] There weren't many cases of serious recividivsm but there were a few homicides, including an especially heinous case in Texas where several young women were raped and strangled.^[11]

Many thought the decision heralded the end of capital punishment in the United States.^[10] The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States^[16] but there was a backlash and public support for the death penalty increased dramatically after the Furman decision. According to Stephen F. Smith the increase of public support for the death penalty was driven by the "politicization of the death penalty". He says "the number of executions might well have continued to decline but for the Court's effort, in the early 1970s, to impose constitutional limits on capital punishment".^[4]^[10]

During the next four years, 37 states enacted death penalty statutes intended to overcome the court's concerns about the arbitrary imposition of the death penalty, including one state that had previously abolished the death penalty.^[14]^[4] Many of the new statutes that mandated bifurcated trials, with separate guilt-innocence and sentencing phases, and imposed standards to guide the discretion of juries and judges in imposing capital sentences, were upheld in a series of Supreme Court decisions in 1976, beginning with Gregg v. Georgia. Other statutes enacted in response to Furman, such as Louisiana's, which mandated imposition of the death penalty upon conviction of certain crimes, were invalidated for cases of that same year.^[10]

References

^ Kaplan, John; Weisberg, Robert; Binder, Guyora (2012). Criminal Law – Cases and Materials (7th ed.). Wolters Kluwer Law & Business. ISBN 978-1-4548-0698-1.
^ Bellware, Kim (July 6, 2022). "Death penalty's 50-year rise and fall since Supreme Court struck it down". The Washington Post.
^ "Furman v. Georgia (1972)". LII / Legal Information Institute. Cornell Law School. Retrieved May 18, 2021.
^ ^a ^b ^c ^d Smith, Stephen F. (2008). "The Supreme Court and the Politics of Death". Virginia Law Review. 94 (2): 283–383.
^ ^a ^b ^c ^d Polsby, Daniel D. (1972). "The Death of Capital Punishment? Furman v. Georgia". Supreme Court Review (1): 1–40. doi:10.1086/scr.1972.3536960.
^ ^a ^b Blume, John H.; Johnson, Sheri; Paavola, Emily C.; and Weyble, Keir M., When Lightning Strikes Back: South Carolina's Return to the Unconstitutional Standardless Capital Sentencing Regime of the Pre-Furman Era(2010). Charleston Law Review
^ ^a ^b "Cruel and Unusual Punishment: The Death Penalty Cases: Furman v. Georgia, Jackson v. Georgia, Branch v. Texas". Journal of Criminal Law, Criminology, and Police Science. 63: 484. 1972. doi:10.2307/1141799. JSTOR 1141799.
^ ^a ^b ^c ^d Graetz, M. J., Greenhouse, L. (2017). The Burger Court and the Rise of the Judicial Right. United States: Simon & Schuster. p. 21
^ Graham, Fred P. (June 30, 1972). "Court Spares 600". The New York Times.
^ ^a ^b ^c ^d Sarat, Austin (May 11, 2022). "Fifty Years Ago, the Supreme Court Tried to Reduce Racial Bias in the Death Penalty. Did It Work?". Slate.com.
^ ^a ^b Kirchmeier, Jeffrey L., 'Into the Courthouse: The 1970s Abolition Strategy', in *Imprisoned by the Past: Warren McCleskey and the American Death Penalty* (New York, 2015)
^ Wrongful Conviction. Temple University Press. 2008. ISBN 9781592136452. JSTOR j.ctt14btc21. Retrieved August 6, 2021. {{cite book}}: |website= ignored (help)
^ Howard, A. E. Dick (1977). "From Warren to Burger: Activism and Restraint". The Wilson Quarterly. 1 (3): 109–121. ISSN 0363-3276. JSTOR 40469455.
^ ^a ^b ^c Lain, Corinna Barrett (2007). "Deciding Death". Duke Law Journal. 57 (1): 1–83. ISSN 0012-7086. JSTOR 40040587.
^ Barry Latzer (2010), Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment, Elsevier, p.37.
^ The Free Lance-Star - Jun 30, 1972: "New laws unlikely on the death penalty," by Barry Schweid