Fifty years ago this week, the United States took a historic step toward a more fair, humane, less racist criminal justice system.
On June 29, 1972, the Supreme Court ruled, in Furman v. Georgia, that the death penalty constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The decision halted executions nationally, and more than 630 people sentenced to death in the U.S. were resentenced to life in prison.
In the majority were Justices William O. Douglas, William J. Brennan Jr., Potter Stewart, Byron White, and Thurgood Marshall. Dissenters included Warren Burger, Harry Blackmun, Lewis F. Powell, Jr., and William Rehnquist.
Three separate cases comprised Furman, and all three petitioners were Black men. William Henry Furman was convicted of murder in Georgia, and Lucius Jackson, Jr., and Elmer Branch were convicted of rape, Jackson in Georgia, Branch in Texas. All three were sentenced to death in their respective cases.
The enormity of the ruling was such that the Court issued a short per curiam opinion, and each of the nine justices wrote his own separate opinion, with Justices William J. Brennan, Jr., and Thurgood Marshall writing separate concurring opinions, further arguing that it was unconstitutional under any circumstances.
“For the state to kill, the state denies the defendants’ humanity. Death is a uniquely severe punishment that is increasingly unusual in modern society,” Brennan wrote. “Its use presumes that there exist criminals who will commit a crime if the punishment is life in prison but will not commit a crime if the punishment is death; this assumption is blatantly wrong.”
Racism and the probability of executing the innocent were two of Marshall’s objections.
“I believe that the following facts would serve to convince even the most hesitant of citizens to condemn death as a sanction: capital punishment is imposed discriminatorily against certain identifiable classes of people; there is evidence that innocent people have been executed before their innocence can be proved, and the death penalty wreaks havoc with our entire criminal justice system,” Marshall wrote.
For Douglas, it was essential to acknowledge that the meaning of “cruel and unusual” is based on evolving standards of decency. “It would seem to be incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class,” he wrote. He emphasized the meaning of “unusual” and that a discriminatory, irregular punishment applied to only certain groups of people is unusual. Equal protection under the law is implicit in the phrase “cruel and unusual.”
This high point in American jurisprudence lasted only four years, until 1976, when capital punishment was reinstated in Gregg v. Georgia. The Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic death sentences and said they can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the use of presenting aggravating and mitigating circumstances in capital cases.
But the truth is that the death penalty is no more constitutional today than it was in 1972. The reasons cited in the majority’s opinions in Furman can be cited today. Capital punishment in the U.S. is just as racist, classist, inhumane, arbitrary, unjust, and barbaric as it was 50 years ago. The Death Penalty Information Center reports that since 1976, 8,281 men and women have been sentenced to death, and 1,547 have been executed. And in the last 49 years, the total number of people sentenced to death who have been exonerated based on evidence of innocence is 191. The National Academy of Sciences estimates that at least four percent of women and men on death row are innocent.
“The death penalty. . . . is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice,” Justice Stewart wrote. “And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”
