CAPITAL PUNISHMENT CASES OF 1972 Furman v. Georgia Jackson v. Georgia Branch v. Texas 408 U.S. 238 (1972)

The Eighth Amendment clearly and expressly forbids the infliction of cruel and unusual punishments (a prohibition that since 1947 has applied to the states as well as to the national government), and opponents of capital punishment have long argued that to execute a convicted criminal, whatever his crime, is such a punishment. It was obviously not so regarded by the persons who wrote and ratified the bill of rights. They acknowledged the legitimacy of the death penalty when, in the Fifth Amendment, they provided that no person "shall be held to answer for a capital … crime, unless on a presentment or indictment of a grand jury, " and when in the same amendment they provided that no one shall, for the same offense, "be twice put in jeopardy of life or limb," and when they forbade not the taking of life as such but the taking of life "without due process of law " (a formulation repeated in the fourteenth amendment). The question of the original understanding of "cruel and unusual" is put beyond any doubt by the fact that the same First Congress that proposed the Eighth Amendment also provided for the death penalty in the first Crimes Act. In 1958, however, the Supreme Court, in the course of holding deprivation of citizenship to be a cruel and unusual punishment, accepted the argument that the meaning of cruel and unusual is relative to time and place; the Eighth Amendment, the Court said in trop v. dulles (1958), "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Implicit in this statement is the opinion that society, as it matures, becomes gentler, and as it becomes gentler, it is more disposed to regard the death penalty as cruel and unusual. According to one member of the five-man majority in the 1972 cases, that point had been reached: "capital punishment," wrote Justice thurgood marshall, "is morally unacceptable to the people of the United States at this time in their history."

This assessment of the public's opinion could not reasonably provide the basis of the Court's judgment in these cases; contrary to Marshall, the polls showed a majority in favor of the death penalty and, more to the point, there were at that time some 600 persons on death row, which is to say, some 600 persons on whom the American people, acting through their federal and state courts, had imposed death sentences. Marshall's assessment was also belied by the reaction to the Court's decision: Congress and thirty-five states promptly enacted new death penalty statutes, and it is fair to assume that they did so with the consent of their respective popular majorities. The states remained authorized, or at least not forbidden, to do so, because the Court did not declare the death penalty as such to be a cruel and unusual punishment; only two members of the 1972 majority adopted that position. Justice william j. brennan said that the death penalty, for whatever crime imposed, "does not comport with human dignity." Marshall, in addition to finding it to be morally unacceptable, said its only possible justification was not that it was an effective deterrent (he accepted Thorsten Sellin's evidence that it was not) but as a form of retribution, a way to pay criminals back, and, he said, the Eighth Amendment forbade "retribution for its own sake." The other majority Justices found the death penalty to be cruel and unusual only insofar as the statutes permitted it to be imposed discriminatorily (william o. douglas), or arbitrarily and capriciously (potter stewart), or (because it is imposed infrequently) pointlessly or needlessly (byron r. white).

That the death penalty has historically been imposed, if not capriciously, then at least in a racially and socially discriminatory fashion seems to be borne out by the statistics. Of the 3,859 persons executed in the United States during the years 1930–1967, when, for a time, executions ceased, 2,066, or fifty-four percent, were black. Georgia alone executed 366 persons, of whom 298 were black. Although American juries have shown increasing reluctance to impose the death penalty (despite the majority sentiment in favor of it in principle), they have been less reluctant to impose it on certain offenders, offenders characterized not by their criminality but by their race or class. "One searches our chronicles in vain for the execution of any members of the affluent strata in this society," said Douglas. "The Leopolds and Loebs are given prison terms, not sentenced to death." The three cases decided in 1972 illustrate his argument. The statutes (two from Georgia, one from Texas) empowered the juries to choose between death and imprisonment for the crimes committed (murder in the one case and rape in the other two), and in each case the jury chose death. As crimes go, however, those committed here were not especially heinous. In the Furman case, for example, the offender entered a private home at about 2 a.m. intending to burglarize it. He was carrying a gun. When heard by the head of the household, William Micke, a father of five children, Furman attempted to flee the house. He tripped and his gun discharged, hitting Micke through a closed door and killing him. Furman was quickly apprehended, and in due course tried and convicted. The salient facts would appear to be these: the offender was black and the victim was white, which was also true in the other two cases decided that day.

By holding that the death penalty, as it has been administered in this country, is a cruel and unusual punishment, the Supreme Court challenged the Congress and the state legislatures, if they insisted on punishing by executing, to devise statutes calculated to prevent the arbitrary or discriminatory imposition of the penalty.

Walter Berns
(1986)

Bibliography

Berns, Walter 1979 For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books.

Black, Charles L., Jr. 1974 Capital Punishment: The Inevitability of Caprice and Mistake. New York: Norton.

Levy, Leonard 1974 Against the Law: The Nixon Court and Criminal Justice. Pages 383–420. New York: Harper & Row.

Sellin, Thorsten 1980 The Penalty of Death. Beverly Hills, Calif.: Sage Publications.

Van Den Haag, Ernest 1975 Punishing Criminals: Concerning a Very Old and Painful Question. Pages 225–228. New York: Basic Books.