In the 1972 case of Furman v. Georgia, 408 U.S. 238, the Supreme Court struck down the death penalties of three men. The majority opinion was a brief, unsigned, per curiam (for the Court) simply declaring that The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Id. at p. 240. No further elaboration of the Court’s reasoning appeared in this opinion.
However, each of the nine Justices wrote a separate opinion explaining the reasons for his agreement (five Justices) or disagreement (four Justices) with the holding. Justice Douglas noted that the death penalty was meted out mostly to the poor young and ignorant, Id. at p. 250, and applied disparately to racial minorities. He concluded that these discretionary (death penalty) statutes are unconstitutional in their operation. They are pregnant with discrimination, and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘‘cruel and unusual’’ punishments. Id. at pp. 256–257. He did not consider whether a mandatory death penalty might be constitutional.
Justice Brennan argued that, since the death penalty was being used in only a small percentage of cases in which it was available, and because it was a punishment that did not comport with evolving standards of human dignity, it had become cruel and unusual and therefore was unconstitutional under any circumstances.
Justice Marshall pointed out that the various purposes supposedly served by capital punishment, deterrence, retribution, and so forth, were equally well served by life imprisonment. Id. at p. 359. He further noted that the death penalty had been discriminatorily applied: A total of 3,859 persons have been executed since 1930, of whom 1,751 were white and 2,066 were Negro. Id. at p. 364. He agreed with Brennan that the death penalty should be abolished altogether.
Justice Stewart, like Douglas, did not rule out mandatory death sentences for certain crimes, but as to the cases before the Court he declared, and Justice White agreed:
These death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual. For, of all the people convicted or rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . . (T)he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed. Id. at pp. 309–310.
Thus, with no clear majority either declaring the death penalty flatly unconstitutional or explaining under what circumstances it would be acceptable, the states were left in considerable confusion as to how to proceed. By 1976 at least thirty-five states and the federal government had reenacted either mandatory death penalty statutes or statutes containing guidelines by which the penalty could appropriately be imposed. The Court was soon to decide challenges to these enactments. Capital Punishment Held not Cruel and Unusual Punishment Under Certain Circumstances.
CRAIG M. BRADLEY
References and Further Reading
Cases and Statutes Cited