Furman v. Georgia


Facts: Furman, joined with the cases Jackson v. Georgia and Branch v. Texas, was granted certiorari and heard collectively by the Court. Furman was found guilty of murder while the other two appellants were convicted of rape by their courts of original jurisdiction. All three were sentenced to death by their respective states. There are some noteworthy facts:

  • All three appellants were African-American
  • The victims of Branch and Jackson were white women
  • Furman and Branch were labeled mentally challenged or borderline mentally challenged

The cases were argued on January 17, 1972 and decided June 29th of that year.

Issue: “Does the imposition and carrying out the death penalty (in these cases) constitute “cruel and unusual punishment” of the eighth and fourteenth amendment?”

Holding: Yes (5-4). Judgments were reversed and were to be looked into greater detail by the lower courts. The majority consisting of Douglas, Brennan, Stewart, White, and Marshall wrote separate concurrences. While Burger (the Chief Justice), Blackmun, Powell, and Rehnquist each wrote separate dissents. As a result, all death penalty cases in the United States were effectively put on hold.


Douglas: According to Douglas, public opinion as to what constitutes “cruel and unusual” can change over time, hence “evolving standards of decency”. He went on to mention that the death penalty in practice violates the Equal Protection Clause of the Fourteenth Amendment because only minorities and the poor suffer from such a sentence. He adds that the punishment does not have to be obsolete to be “unusual” though.

Brennan: He also found value in the concept of “evolving standards of decency” and the Court cannot merely look at original intent. “Cruel and unusual punishment(s)” were not enumerated and Congressman Livermore had mentioned in the Constitutional Convention that if such enumeration was not given the courts will eventually rule the death penalty to be in violation (the members gave no response perhaps in affirmation of such a fact). He also pointed out that the Constitution is meant to protect the people from mob mentality and, therefore, Congress has limits on punishments.

Brennan also listed four principles that would constitute “cruel and unusual punishment”, which were:

  1. They are “unusually severe”
  2. Strong likelihood that they are “inflicted arbitrarily”
  3. They are “substantially rejected by society”
  4. There exist less severe methods

He found that the death penalty falls under all four prongs and is thus invalid in all cases.

Stewart: The fact that the death penalty was not automatic for such crimes in those states led this associate justice to believe that the prosecution and jury will pick and choose the punishment of death for certain criminals. Unlike some of the others in the majority, he believed that retribution would be a valid reason to sentence a person to death.

White: Like Stewart, he concurred that the jury is inconsistent with their decisions.

Marshall: Like Brennan, Marshall believed that the death penalty is invalid in all cases. His judicial inquest was to examine two matters with thorough examination in order:

  1. Look at the origin of the eighth amendment
  2. Look at the historical background and characteristics of the death penalty

Creation of the Eighth Amendment: With many acts of torture in England, Parliament creates a bill of rights in the 17th century and “cruel and unusual punishments” are forbidden (disproportionate penalties are included in that definition). The Founding Fathers later adopt such language in Virginia’s Declaration of Independence, which is later included in the 8th amendment of the United States Constitution.

History and Characteristics: Case law is the basis with some applicable rulings including:

  • Wilkerson v Utah (1879): Unnecessary cruelty is a violation of the Eighth Amendment ( “developing thought” or later “evolving standards of decency” emerges)
  • O’Neil v. Vermont (1892): Eighth Amendment is applicable to the states.

After his examination, he developed a four pronged test where anyone of these reasons would constitute a “cruel and unusual punishment”

  1. Great physical pain is experienced
  2. Unknown previous punishments that are inhumane
  3. Excessive and serves no “legislative purpose” (the six purposes being retribution, deterrence, prevention of criminal acts, encouragement of guilty pleas, eugenics, and economy.
  4. If public feels they are “cruel and unusual”

He found that all four of these apply to the death penalty and the “legislative purposes” listed were either ineffective or invalid. As such the death penalty is, per se, invalid.


Burger (joined by Blackmun, Powell, and Rehnquist): The Chief Justice believed that the Court, in this case, legislated. As such democracy has been taken away namely from the legislature and the jury (who both represent the people). The Court has also consistently denied that such is a violation of the eighth amendment.

Furthermore, the grounds for the death penalties constitutionality lie expressly in the Due Process Clause of the 5th and 14th Amendment where a person’s “… life, liberty, or property” cannot be taken away “without the due process of law…” and these appellants had been found guilty through due process. Out of all the opinions, he loathed the concept of “evolving standards of decency” the most.

Blackmun: The death penalty is something that he found abhorrent yet the people, at large, still want the death penalty. The people elect members of Congress, who more than often are lawyers, to make such laws. Also, he expressed strong sympathy for the victims and their right to justice.

Powell (joined by Burger, Blackmun, and Rehnquist): This associate justice was appalled by the majority’s alleged violation of judicial restraint, stare decisis, and separation of powers. He conceded that the meaning of “cruel and unusual” can change over time but the Court went to far. Instead the issue should be looked at by a case by case basis (e.g. executing a mentally challenged person).

In addition, he did agree that the death penalty is at least somewhat disproportionate but so is the penal system. Does that make the penal system invalid? He of course disagrees.

Rehnquist: Courts have the right to judicial review but must “be approached with the deepest humility and genuine deference to legislative intent” he stated. The Court was created merely to interpret law and not to make it. He disagreed with many in the majority who declare that deterrence is not generated because the thought of death is more alarming than life imprisonment. Finally, calling the death penalty “excessive” leads down a slippery slope. For example, a life sentence could be later determined to be “excessive” as opposed to a termed one.



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