Supreme Court Cases

Furman v. Georgia, 1972

Historical Background

Few subjects generate as much public debate as capital punishment. The death sentence has been an accepted part of the American code of justice since the first European settlers arrived on this continent. In 1972, the year the Supreme Court decided Furman v. Georgia, the death penalty was a part of the criminal codes in 40 of the 50 States.

Widespread popular opposition to the death penalty did not exist when the Court handed down its Furman decision; indeed, it was the Court's decision that brought attention to the issue. In the subsequent debate, supporters of the death penalty pointed to its wide public acceptance as a reflection of the "will of the people." Opponents argued that as times change, new (and presumably more humane) standards of decency evolve. They pointed out that society no longer sanctions brutal and barbaric forms of punishment, such as burning people at the stake. Just as those punishments passed from use as society embraced a higher standard of decency, they said, so, too, should the practice of State-sanctioned executions. Critics pointed to trends apparently moving in that direction. Fewer and fewer people were executed as the century passed. Moreover, the number of death sentences has decreased in proportion to the number of cases in which it might have been used.

Circumstances of the Case

The Furman case consolidated appeals from three convicted murderers serving out sentences on death row. The lead case was that of William Henry Furman, a 26-year-old African American from Georgia, who had broken into a home with the intent to commit theft. The home owner surprised Furman, however, and attempted to apprehend him. Furman, armed with a revolver, ran away. While fleeing, Furman said, he "dropped his gun, which discharged and killed the home owner." Furman was arrested, tried, and found guilty of murder. The jury had the choice of sentencing Furman to life imprisonment or to death. It chose death.

The other cases were those of Lucius Jackson, Jr., who had been convicted of sexual assault and sentenced to death, also in Georgia, and Elmer Branch, who awaited execution in Texas after being convicted of sexual assault. These two men were also African American.

Constitutional Issues

The cases considered the 8th and 14th Amendments—the Cruel and Unusual Punishment and the Equal Protection clauses, specifically. Was the death penalty, as applied by the States in the three cases, "cruel and unusual"? Would the death penalty be "cruel and unusual" if it typically were given to poor people and minorities, while affluent or white people were given life sentences for similar crimes? Did such a double standard violate the Equal Protection Clause of the 14th Amendment?


For Furman: Furman's attorneys argued that criminal justice could be served well enough with life imprisonment. "…[T]he American people no longer felt that the death penalty was suited to human dignity," they said. Most importantly, however, the attorneys argued that poor people and people of color routinely received the death penalty for capital offenses, at a rate vastly disproportionate to that of whites, particularly affluent whites, accused of similar offenses. This was a clear violation of the 14th Amendment's guarantee of equal protection of the laws.

For Georgia: Attorneys for the State of Georgia argued that the death penalty was permitted under the due process provisions of the 5th and 14th Amendments and did not constitute "cruel and unusual punishment" as prohibited by the 8th Amendment. The attorneys argued that "the death penalty served to discourage [or deter] crime and also satisfied the public's moral outrage when terrible crimes were committed."

Decision and Rationale

The Court split 5–4 in striking down the death penalty as it was currently applied in State criminal codes. The four newest members of the Burger Court (including the chief justice) opposed the decision, while the holdovers from the Warren Court comprised a divided majority. The majority opinion reflected these divisions but overturned Furman's sentence nonetheless. The Court held that the death penalty, as it was currently applied in State criminal codes, violated the 8th Amendment and 14th Amendment rights of condemned persons.

Each majority justice, Mr. Douglas, Mr. Stewart, Mr. White, Mr. Marshall, and Mr. Brennan, wrote a separate concurring opinion supporting the majority decision. Each believed that Furman had indeed been deprived of his constitutional rights. The justices could not agree on an argument striking down the death penalty across the board, however. This unusual procedure reflected not only the intense differences of opinion within the majority, but also the difficulty of deciding the constitutionality—or presumed lack thereof—of the death sentence.

The four dissenters, Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist, also wrote extensive opinions expressing their views against the majority opinion. Several argued—taking the position of judicial restraint—that the death penalty was a matter for the people to decide, through their legislatures. Others argued that emotional appeals were not appropriate in Supreme Court opinions. Finally, the dissenters were disturbed by the erosion of federalism and the unnecessarily intrusive judicial activism practiced by the justices of the Warren Court.

In Furman the Supreme Court ruled that the sentence of death, itself, was not unconstitutional, but that the procedures and applications as practiced by the States were. Many States rewrote their criminal codes immediately, to more narrowly define and apply the death sentence. The newer codes have been generally upheld in such cases as Proffit v. Florida, 1976, and Jurek v. Texas, 1976.

The Court continued to hammer at vagueness in State criminal codes in Gregg v. Georgia, 1976; Coker v. Georgia, 1977; and Godfrey v. Georgia, 1980. In the Gregg case, the Court developed at some length the history and arguments on the death sentence. At one point, the decision explicitly upheld the "constitutionality of the death sentence."

Questions for Discussion

  1. The Court has repeatedly held that the death penalty is not "cruel and unusual" under the 8th Amendment. Yet the legal canon also accepts the notion of "evolving standards of decency." Attempt to justify these two potentially contradictory ideas, stating your agreement or disagreement with the Court's ruling in this case.
  2. Consult an almanac to determine how many States include the death penalty among their criminal punishments. How many persons have been put to death in the most recent year for which you have statistics?
  3. How would you go about verifying any change in the racial bias claimed by Furman in his case? How could you find out if it is more likely for African Americans to be sentenced to death for murdering someone of their own race than for persons of European ancestry (that is, whites) who murder other whites?