Furman v. Georgia, 408 U.S. 238 (1972)

Furman v. Georgia began the modern era of Capital Punishment jurisprudence in the United States. The broad issue in the case was whether the death penalty was unconstitutional, but the narrower issue concerned capital Sentencing procedures. A majority of the Justices did not resolve the first issue, but the Court held that the procedures used to impose the death penalty violated the constitution.

At the time of Furman, death penalty statutes gave juries complete discretion on the issue of whether or not to impose the death penalty. The previous year, in McGautha v. California, the Supreme Court held that such systems do not violate the due process clause of the Fourteenth Amendment. However, in Furman, the Court in a five-to-four decision held that these discretionary systems do constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

Furman left open several issues because there was no clear consensus among the Justices. In addition to the short per curiam opinion striking the death penalty in the cases at issue, each of the nine Justices wrote a separate opinion, creating the longest decision ever issued by the Court.

Two of the Justices in the majority concluded that the death penalty itself is unconstitutional, but the other three Justices in the majority did not go so far, focusing on the arbitrariness and racial discrimination resulting from the process. Furman ended the death penalty in the United States until the Court approved of new death penalty statutes approximately four years later in Gregg v. Georgia.

JEFFREY L. KIRCHMEIER

References and Further Reading

• Kirchmeier, Jeffrey L., Another Place Beyond Here: the Death Penalty Moratorium Movement in the United States, Colorado Law Review 73 (2002): 1:1–116 (article available at https://www.colorado.edu/law/lawreview/issues/summaries/73-1.htm).
• Woodward, Bob, and Scott Armstrong. The Brethren: Inside the Supreme Court 260. New York: Avon Books, 1981.
• Zimring, Franklin E., and Gordon Hawkins. Capital Punishment and the American Agenda, New York: Cambridge University Press, 1989.

Cases and Statutes Cited

• Furman v. Georgia, 408 U.S. 238 (1972)
• Gregg v. Georgia, 428 U.S. 153 (1976)
• McGautha v. California, 402 U.S. 183, 196 (1971)

See also Capital Punishment; Gregg v. Georgia, 428 U.S. 153 (1976)