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Elianna Spitzer is a legal studies writer and a former Schuster Institute for Investigative Journalism research assistant. She has also worked at the Superior Court of San Francisco's ACCESS Center.
Updated on December 13, 2019Furman v. Georgia (1972) was a landmark Supreme Court case in which a majority of justices ruled that existing death penalty schemes in states nationwide were arbitrary and inconsistent, violating the Eighth Amendment of the U.S. Constitution.
The death penalty, also known as “capital punishment,” is the lawful execution of a criminal by a state or governing body. The death penalty has been a part of American legal codes since colonial times. Historians have tracked legal executions back to 1630. Despite the longevity of capital punishment, it has never been consistently applied across states. Michigan, for example, abolished the death penalty in 1845. Wisconsin entered the union without capital punishment as part of its legal code.
Furman v. Georgia was actually three separate death penalty appeals: Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas. In the first, a 26-year-old man named William Henry Furman was sentenced to death for murdering someone while attempting to burglarize a home. Furman gave two separate accounts of what had happened. In one, he upon once the homeowner tried to grab him and shot blindly on his way out. In the other version of events, he tripped over a gun while fleeing, fatally injuring the homeowner by accident. A jury found Furman guilty of murder during the commission of a felony (the burglary). Members of the jury were given the option of death or life imprisonment and chose to sentence Furman to death.
In Jackson v. Georgia, Lucius Jackson, Jr. was found guilty of sexual assault and sentenced to death by a Georgia jury. The Georgia Supreme Court affirmed the sentence on appeal. In Branch v. Texas, Elmer Branch was also found guilty of sexual assault and sentenced to death.
Prior to Furman v. Georgia, the Supreme Court had ruled on the concept of “cruel and unusual punishment” without ruling on the constitutionality of the death penalty. For example, in Wilkerson v. Utah (1878) the Supreme Court found that drawing and quartering someone or disemboweling them alive rose to the level of “cruel and unusual” in death penalty cases. However, the Court declined to rule on whether or not the state could lawfully kill a criminal. In Furman v. Georgia, the Court sought to settle whether or not the “imposition and execution” of the death penalty itself could be unconstitutional under the Eighth Amendment.
The State of Georgia argued that the death penalty had been lawfully applied. The Fifth and Fourteenth Amendments provide that no state “shall deprive any person of life, liberty or property without due process of law.” Therefore, the Constitution allows a state to deprive someone of life as long as it provides due process of law. In the case of Furman, he had been found guilty through a jury of his peers and sentenced. The attorneys argued that the death penalty has served as a means to deter particularly violent and awful crimes since the time in which the U.S. Constitution and the Eighth Amendment were written. The death penalty should be abolished by individual states, rather than the Supreme Court, the attorneys added in their brief.
Attorneys on behalf of Furman argued that his sentence was “a rare, random and arbitrary infliction” of punishment, not allowed under the Eighth Amendment. Specifically for Furman, the fact that he had been sentenced to death when there were conflicting reports of his “mental soundness” was particularly cruel and unusual. The attorneys further pointed out that the death penalty was used more frequently against poor people and people of color. The jury that convicted Furman knew only that the victim died by a shot from a handgun and that the defendant was young and Black.
The Supreme Court issued a short per curiam opinion. In a per curiam opinion, the court collectively authors one decision, rather than allowing one justice to write an opinion on behalf of the majority. The Court found that the death penalty, as issued in each of the three cases it reviewed, could be considered “cruel and unusual punishment.”
Five justices concurred with the “majority” opinion that the death penalties in each of the three cases were unconstitutional. However, they offered different reasonings. Justice John Marshall and Justice William J. Brennan argued that the death penalty was “cruel and unusual punishment” in all circumstances. The term “cruel and unusual punishment” draws from an evolving standard of decency, Justice Marshall wrote. Legislative purposes for using the death penalty like deterrence and retribution can be achieved by less severe means. Without a sound legislative purpose, the death penalty necessarily constitutes cruel and unusual punishment, Justice Marshall argued.
Justices Stewart, Douglas, and White argued that the death penalty itself is not unconstitutional, but rather it was unconstitutionally applied in the three cases before the Court. Justice Douglas argued that many death penalty procedures allowed judges and juries to decide who lives and dies. This allowed capital punishment to be arbitrarily applied. Justice Douglas noted that people of color and people who are low income received the death penalty more frequently.
Chief Justice Warren E. Burger and Justices Lewis F. Powell, William Rehnquist, and Harry Blackmun dissented. Many of the dissents hinged on whether or not the Supreme Court should even be addressing the constitutionality of the death penalty. Some of the Justices argued that capital punishment and the question of whether or not it should be abolished should be left to the states. Chief Justice Burger disagreed with Justice Marshall’s view that the death penalty does not serve a legitimate state interest. It is not up to the courts to determine whether punishment is “effective.” Questions of whether or not the death penalty successfully deters criminal activity should be left to the states, Chief Justice Burger opined. Some of the dissenting justice argued that abolishing the death penalty could lead to an erosion of the separation of powers. They opined that judicial activism has no place in the court and that the majority opinions had been swayed by emotional arguments.
Furman v. Georgia halted executions nationally. Between 1968 and 1976, no executions took place in the U.S. as states scrambled to comply with the Court’s ruling in Furman. Once the decision was handed down, it seemed as if it would abolish the death penalty altogether by complicating the procedural requirements. However, by 1976, 35 states had shifted their policies in order to comply. In 2019, the death penalty was still a form of punishment in 30 states, though it remains a contentious issue. Looking back on Furman v. Georgia, many legal scholars note that the vast differences in opinion between uustices reduced the efficacy of the decision.
