Thinking Citizen Blog — Furman v Georgia (1972) — 9 separate opinions!

Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day

Today’s Topic — Furman v Georgia (1972) — 9 separate opinions!

Between the Furman decision of 1972 and the Gregg decision of 1976, there was a moratorium on the death penalty in the United States. In Furman, the court held that the death penalty as then practiced was too inconsistent to be compatible with the 8th amendment of the Constitution which bans “cruel and unusual punishment.” Between 1972 and 1976 many states scurried to adjust their practices to make them acceptable to the Court. According to the Gregg decision (7–2), several statutes passed muster and the moratorium ended. The Furman decision was 5–4 and a “per curiam” decision, meaning that no justice put his name to the majority decision. Each justice wrote his own opinion. Today, a brief summary of each. Experts — please chime in. Correct, elaborate, elucidate.

POTTER STEWART, BYRON WHITE, WILLIAM O. DOUGLAS — against the death penalty in Furman (1972) but they would switch in Gregg (1976)

1. Stewart: too arbitrary, “like a stroke of lightning.”

2. Douglas: worried about room for discrimination on the basis of race and class.

3. White: too infrequently applied to be an effective deterrent.

THURGOOD MARSHALL AND WILLIAM BRENNAN (staunch opponents of the death penalty under any circumstances, the two dissenters in Gregg)

1. Brennan — the American public was moving away from supporting the death penalty and the Court should lead the way.

2. Marshall — the only reason many Americans support the death penalty is that they are ignorant of how it actually works. The Court can straighten them out.

WARREN BURGER, HARRY BLACKMUN, LEWIS POWELL, WILLIAM REHNQUIST (dissenters in Furman, would all vote with the majority in Gregg)

1. Burger: the Supreme Court should defer to state legislatures.

2. Blackmun (paraphrased): if I were legislator, I would vote for the abolition of the death penalty, if I were an executive, I would grant clemency, as a judge I must not let my personal feelings dictate my decision.

3. Powell: the Fifth Amendment of the Constitution and 181 years of precedent make the constitutionality of capital punishment crystal clear.

4. Rehnquist: an egregious violation of judicial restraint: “would, at one fell swoop, invalidate laws enacted by Congress and 40 of the 50 state legislatures, and would consign to the limbo of unconstitutionality under a single rubric penalties for offenses as varied and unique as murder, piracy, mutiny, highjacking, and desertion in the face of the enemy.”

NB: Gregg basically tried to carve a middle path between too much jury discretion and too little (eg. mandatory death sentences). This path is sometimes called “guided discretion.” My understanding is that the two specific mechanisms involved are bifurcated hearings” (one for guilt or innocence, the other for sentencing) and lists of “aggravating” and “mitigating circumstances” to be weighed by jurors.

Furman v. Georgia

Furman v. Georgia/Dissent Rehnquist — Wikisource, the free online library

Furman v. Georgia/Dissent Blackmun — Wikisource, the free online library

Joseph Hoffmann, “Criminal Law and Procedure,” in Law School for Everyone


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John Muresianu

Passionate about education, thinking citizenship, art, and passing bits on of wisdom of a long lifetime.