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 . 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.

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.

Background

The death penalty used to be a mandatory sentence for murder but by the 1970s most states had given juries complete discretion in deciding who should be executed and who should be sent to prison. Defense attorneys challenged death sentences on the grounds that jury discretion in capital cases resulted in arbitrary sentences being imposed in violation of the Eighth and Fourteenth amendments. In McGautha v. California , decided thirteen months before Furman, the Burger Court held that absolute jury discretion in capital sentencing did not violate the Due Process Clause of the 14th Amendment. Justices Douglas, Brennan and Marshall dissented. McGautha left unresolved similar challenges under the Eighth Amendment.

Case history

In the Furman v. Georgia case, William Micke awoke in the middle of the night to find William Henry Furman committing burglary in his house. At trial, in an unsworn statement allowed by Georgia criminal procedure, Furman said that while trying to escape, he tripped and the weapon he was carrying fired accidentally, killing the victim. This contradicted his prior statement to police that he had turned and fired a shot blindly while fleeing. In either event, because the shooting occurred during the commission of a felony, Furman would have been guilty of murder and eligible for the death penalty under then-extant state law, according to the felony murder rule.

Furman was tried for murder and was found guilty based largely on his own statement. Although he was sentenced to death, the punishment was never performed.

Lucious Jackson was sentenced to death by the Supreme Court of Georgia for raping a white woman. Elmer Branch was sentenced to death for raping a 65 year old white woman before attempting to rob her. Branch v. Texas was brought to the Supreme Court of the United States on appeal on certiorari to the Texas Court of Criminal Appeals. Like Jackson, Branch was convicted of rape.

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."

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.

Three justices raised concerns about racial bias. Justice Douglas said "the idea of equal protection of the laws [is] implicit in the ban on 'cruel and unusual' punishments". Marshall said there was "evidence of racial discrimination".Of the dissenters, Justice Lewis Powell was concerned by empirical evidence of racial discrimination.

Per curiam opinion

Justices Potter Stewart and Byron White, considered the swing votes, reasoned that erratic and arbitrary imposition of the death penalty violated the constitutional prohibition against cruel and unusual punishment. Both Potter and Stewart limited their decisions to the three arbitrarily imposed death sentences before the court.

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."

For White, the constitutional violation arose from the death penalty being imposed too infrequently to serve the public purpose of deterrence "to the extent the moral justification for the use of the punishment is compromised". 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):

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The impact for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. 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.

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. 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.

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."

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. 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.

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 reduced to life imprisonment. 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.

Many thought the decision heralded the end of capital punishment in the United States. The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States 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".

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. 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 crimed, were invalidated for cases of that same year.

See also

• Capital punishment in the United States
• List of United States Supreme Court cases, volume 408
• Coker v. Georgia
• Kennedy v. Louisiana
• Gregg v. Georgia
• Baze v. Rees
• Glossip v. Gross

Further reading

• Hull, Elizabeth (January 2010). "Guilty On All Counts". Social Policy. 39 (4): 11–25, 15p. Archived from the original on March 4, 2016 – via EBSCOHOST.
• Oshinsky, David M. (2010). Capital Punishment on Trial: Furman V. Georgia and the Death Penalty in Modern America. University Press of Kansas. ISBN 978-0-7006-1711-1.