408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)
In 1969 William Henry Furman was convicted of murder in Georgia and sentenced to death under Ga. Code Ann. § 26-1005 (Supp. 1971), after which the Georgia Supreme Court affirmed the judgment in 225 Ga. 253, 167 S.E.2d 628 (1969).1 In the same year Lucius Jackson, Jr., was convicted of rape in Georgia and sentenced to death under Ga. Code Ann. § 26-1302 (Supp. 1971), and the same court affirmed that judgment in 225 Ga. 790, 171 S.E.2d 501 (1969).2 Also in 1969 Elmer Branch was convicted of rape in Texas and sentenced to death under Tex. Penal Code, Art. 1189 (1961), after which the Texas Court of Criminal Appeals affirmed the judgment in 447 S.W.2d 932 (Ct. Crim. App. 1969).3
Each death sentence was imposed after a jury trial under a statute that left the choice between death and a lesser punishment to the uncontrolled discretion of the jury or judge, and the state courts upheld the convictions and sentences.4 The Supreme Court granted certiorari limited to the question whether the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, then consolidated the matters for argument in January 1972.
The records showed that the three petitioners were Black men convicted of crimes against white victims.5 Furman had been diagnosed with mild mental deficiency and psychotic episodes associated with convulsive disorder, while Jackson and Branch had limited education and low intelligence scores.6 No standards guided the sentencing decision, and the penalty was imposed on only a trivial fraction of eligible offenders despite statutory authorization for these offenses.7
Whether the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?8
The Eighth Amendment prohibits cruel and unusual punishments and applies to the states through the Fourteenth Amendment.9 A punishment is cruel and unusual when it is unusually severe and degrading to human dignity, when it is inflicted arbitrarily, when contemporary society has rejected it, or when it is excessive because it serves no legitimate penal purpose more effectively than a less severe alternative.10
Yes. The death penalty as imposed under the Georgia and Texas statutes violates the Eighth and Fourteenth Amendments because the statutes vested uncontrolled discretion in the jury, producing arbitrary and infrequent infliction of the ultimate penalty.11 The records establish that Furman, Jackson, and Branch received death sentences for murder and rape without any statutory standards to guide the choice between death and imprisonment.12 This system permitted the penalty to fall on a capriciously selected handful of defendants, disproportionately affecting the poor and members of minority groups, while thousands of similar cases resulted in lesser sentences.13
The rarity of actual executions despite broad statutory authorization demonstrates that contemporary society rejects the punishment in practice, and the absence of any showing that death deters more effectively than life imprisonment renders it excessive.14
The imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.15
Related opinions on this issue
Justice Douglas concurred on the ground that the discretionary statutes permitted the death penalty to be imposed in an arbitrary and discriminatory manner that disproportionately affected the poor, Black defendants, and members of unpopular groups.16 He observed that the history of the Eighth Amendment reflected concern with selective application of severe penalties.17 He concluded that statutes allowing judges or juries to choose death without standards were unconstitutional because they enabled punishment based on prejudice rather than uniform rules.18
Justice Brennan concurred on the ground that the death penalty is an unusually severe and degrading punishment that treats human beings as nonhumans and is unique in its finality and irrevocability.19 He explained that the penalty fails each of the four principles derived from the Eighth Amendment because it is degrading to human dignity, is inflicted arbitrarily under discretionary statutes, has been rejected in practice by contemporary society despite statutory authorization, and serves no legitimate penal purpose more effectively than life imprisonment.20 He emphasized that the deliberate extinguishment of life cannot be justified when it is imposed so rarely that it no longer fulfills any retributive or deterrent function, rendering the punishment excessive and inconsistent with human dignity.21
Justice Stewart concurred on the ground that the death sentences were cruel and unusual because they were imposed so rarely and arbitrarily that they resembled being struck by lightning.22 He noted that the petitioners were among a capriciously selected random handful upon whom death had actually been imposed despite thousands of eligible cases.23 He concluded that the Eighth and Fourteenth Amendments cannot tolerate infliction of death under systems that permit the penalty to be wantonly and freakishly applied, as such selective imposition violates the fundamental requirement of regularity in criminal punishment.24
Justice White concurred on the ground that the death penalty is cruel and unusual because it is imposed so infrequently that it no longer serves any legitimate purpose of deterrence or retribution.25 He observed that legislatures had provided insufficient standards to guide sentencing authorities, resulting in a system where the penalty is applied to only a trivial fraction of eligible offenders.26 He concluded that the penalty is excessive because its rarity prevents it from fulfilling the functions for which it was authorized, rendering the punishment pointless and therefore unconstitutional under the Eighth Amendment.27
Justice Marshall concurred on the ground that the death penalty is an excessive punishment because it is unnecessary to accomplish any legitimate legislative end and is no longer acceptable to civilized society.28 He concluded that the penalty does not deter more effectively than life imprisonment and that its moral unacceptability to the people of the United States at this time in their history renders it cruel and unusual.29 He further explained that the punishment fails all four principles under the Eighth Amendment because it is degrading, arbitrarily inflicted, rejected in practice by society, and excessive in light of available alternatives.30
Chief Justice Burger dissented on the ground that the holding is not supported by the text or history of the Constitution.31 He argued that the Eighth Amendment was not intended to prohibit the death penalty because the framers were well aware of the penalty and did not prohibit it.32 He maintained that the Court had undertaken to legislate in an area properly left to the legislatures and that state legislatures had determined the penalty appropriate for certain crimes, making judicial intervention an improper substitution of judgment for democratic processes.33
Justice Blackmun dissented on the ground that the Constitution does not prohibit the death penalty.34 He argued that the Eighth Amendment does not render it cruel and unusual in the constitutional sense and that the question of whether the penalty remains appropriate should be left to the people and their elected representatives rather than resolved by judicial legislation.35 He maintained that the Court's decision constituted an improper act of judicial legislation that removed a policy choice properly belonging to the democratic process.36
Justice Powell dissented on the ground that the holding is not required by the Constitution, which does not prohibit the death penalty that has been in use since the founding of the Republic.37 He maintained that the statutes are not unconstitutional on their face because the exercise of discretion by the sentencing authority is an inherent part of the criminal justice system.38 He argued that the Court had struck down the penalty as currently administered without constitutional necessity and that the exercise of sentencing discretion remains a legitimate feature of criminal procedure.39
Justice Rehnquist dissented on the ground that the holding cannot be squared with the text or history of the Constitution.40 He argued that the Eighth Amendment was not intended to prohibit the death penalty because the framers of the Bill of Rights were aware of the penalty and did not prohibit it.41 He maintained that the Court had substituted its own policy preferences for those of the legislatures and that the question of whether the death penalty is an appropriate punishment should be left to the democratic process rather than decided by judicial fiat.42