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Furman v. Georgia
[408 U.S. 238]
Burger Court,  Decided 5-4,  6/29/1972
Read the actual decision

The Furman decision effectively suspended capital punishment in the United States. Even after its tentative reintroduction in the Utah case of Gary Gilmore in 1977, Furman's varied arguments have resulted not only in continued resistance to its implementation nationally, but to changes in the methods of execution.

During the sixties, the courts had been restraining execution of death sentences at an increasing pace, and for a variety of reasons. At that time, 87% of executions were for murder, 12% for rape and the remaining 1% for a variety of other crimes, including treason, espionage and airplane hijacking. Given the close examination the lower courts were giving the issue, it was only a matter of time before the Supreme Court was asked to review a case.

It came in 1972 when Furman, a black man, was convicted of murder and sentenced to die by a Georgia jury. When appealed to the U.S. Supreme Court, the jury was found to have had no guidelines for using its discretion in recommending the death penalty. Also petitioning were two similar cases, involving rapists, from Georgia and Texas. Those defendants were also black.

There was no single opinion issued for this very divided Court. All five concurring justices issued individual opinions, and the dissenting justices issued both a single and individual opinions. The variety of substantiations offered by the individual justices reflect as well the diversity of opinion and concerns in the general public, even while a vast majority continue to favor implementation of the ultimate punishment.

The most prevalent opinion on the Court, and one that carries some water for both sides of the issue, was that a jury without guidelines for recommending the death penalty, and which therefore appears to have done so arbitrarily, has violated the Eighth Amendment rights of the defendant, the right not to be subjected to cruel and unusual punishments.

If this correlation seems a bit stretched, especially in light of earlier Court decisions carefully defining "cruel and unusual" as torture or a lingering death, when one adds Justice White's observation that the penalty is rarely imposed and more rarely carried out, even in so-called capital cases, it does become easier to see his rationale. Justice White went on to say that, given no mandatory imposition for certain crimes, and a demonstrated rarity, the penalty does not even serve its purpose of deterrence or "social needs for retribution". This apparent irrationality on the part of society added to the finding, in his opinion.

White was joined by Justice William O. Douglas in adding that the apparent social maldistribution of the penalty made it unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Justices Thurgood Marshall and William Brennan went even a step further, and called the death penalty inherently unconstitutional per se.

The dissent in this case basically felt that the federal government -- the Court -- should not interfere with States setting punishments for state crimes. They further pointed out that the public overwhelmingly approved of capital punishment.

While the states went back to work reshaping their sentencing guidelines and jury instructions to meet the challenges of Furman, the Court issued its Gregg decision in 1976, requiring states to do just that, as well as to hold separate penalty hearings in capital cases.

The first state to test its new capital punishment guidelines against Furman and Gregg was Utah, which executed previously convicted and sentenced murderer Gary Gilmore by firing squad in 1977.

Since then about forty states and the federal government have reshaped their death penalty guidelines to pass muster, and public support remains strong. Today virtually all executions are for intentional homicide. Spies, traitors and assorted scum -- don't get too comfortable.

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Write your Congressmen on this issue.

Other decisions pertaining to Capital Punishment:

Gregg v. Georgia    [428 U.S. 153 (1976)]  Burger Court
Louisiana ex rel. Francis v. Resweber    [329 U.S. 459 (1947)]  Vinson Court
Wilkerson v. Utah    [99 U.S. 134 (1905)]  Waite Court
Woodson v. North Carolina    [428 U.S. 280 (1976)]  Burger Court

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