Furman v. Georgia Jackson v. Georgia Branch v. Texas 8212 5003, 69 8212 5030, 69 8212 5031, Nos. 69

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART; THE CHIEF JUSTICE, Mr. Justice BLACKMUN; DOUGLAS; BRENNAN; STEWART; WHITE; MARSHALL; Story; Frank; Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN; STEWART; BLACKMUN;
Citation92 S.Ct. 2726,33 L.Ed.2d 346,408 U.S. 238
Decision Date29 June 1972
Docket NumberNos. 69
PartiesWilliam Henry FURMAN, Petitioner, v. State of GEORGIA. Lucious JACKSON, Jr., Petitioner, v. State of GEORGIA. Elmer BRANCH, Petitioner, v. State of TEXAS. —5003, 69—5030, 69—5031

408 U.S. 238
92 S.Ct. 2726
33 L.Ed.2d 346
William Henry FURMAN, Petitioner,

v.

State of GEORGIA. Lucious JACKSON, Jr., Petitioner, v. State of GEORGIA. Elmer BRANCH, Petitioner, v. State of TEXAS.

Nos. 69—5003, 69—5030, 69—5031.
Argued Jan. 17, 1972.
Decided June 29, 1972.

Anthony G. Amsterdam, Stanford, Cal., for petitioner Furman.

Jack Greenberg, New York City, for petitioner Jackson.

Melvyn Carson Bruder, Dallas, Tex., for petitioner Branch.

Dorothy T. Beasley, Atlanta, Ga., for respondent State of Georgia.

Charles Alan Wright, Austin, Tex., for respondent State of Texas.

Willard J. Lassers and Elmer Gertz, Chicago, Ill., for amici curiae.

Page 239

PER CURIAM.

Petitioner in No. 69—5003 was convicted of murder in Georgia and was sentenced to death pursuant to Ga.Code Ann. § 26—1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969). Petitioner in No. 69—5030 was convicted of rape in Georgia and was sentenced to death pursuant to Ga.Code Ann. § 26—1302 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 501 (1969). Petitioner in No. 69—5031 was convicted of rape in Texas and was sentenced to death pursuant to Vernon's Tex.Penal Code, Art. 1189 (1961). 447 S.W.2d 932 (Ct.Crim.App.1969). Certiorari was granted limited to the following question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d 863 (1971). The Court holds that the imposi-

Page 240

tion and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. So ordered.

Judgment in each case reversed in part and cases remanded.

Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. Justice STEWART, Mr. Justice WHITE, and Mr. Justice MARSHALL have filed separate opinions in support of the judgments.

THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions.

Mr. Justice DOUGLAS, concurring.

In these three cases the death penalty was imposed, one of them for murder, and two for rape. In each the determination of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge or of the jury. In each of the three cases the trial was to a jury. They are here on petitions for certiorari which we granted limited to the question whether the imposition and execution of the death penalty constitute 'cruel and unusual punishment' within the meaning of the Eighth Amendment as applied to the States by the Fourteenth.1 I vote to vacate each judgment, believing that the exaction of the death penalty does violate the Eighth and Fourteenth Amendments.

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That the requirements of due process ban cruel and unusual punishment is now settled. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, and 473—474, 67 S.Ct. 374, 376, and 381, 91 L.Ed. 422 (Burton, J., dissenting); Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758. It is also settled that the proscription of cruel and unusual punishments forbids the judicial imposition of them as well as their imposition by the legislature. Weems v. United States, 217 U.S. 349, 378—382, 30 S.Ct. 544, 553—555, 54 L.Ed. 793.

Congressman Bingham, in proposing the Fourteenth Amendment, maintained that 'the privileges or immunities of citizens of the United States' as protected by the Fourteenth Amendment included protection against 'cruel and unusual punishments:'

'(M)any instances of State injustice and oppression have already occurred in the State legislation of this Union, of flagrant violations of the guarantied privileges of citizens of the United States, for which the national Government furnished and could furnish by law no remedy whatever. Contrary to the express letter of your Constitution, 'cruel and unusual punishments' have been inflicted under State laws within this Union upon citizens, not only for crimes committed, but for sacred duty done, for which and against which the Government of the United States had provided no remedy and could provide none.' Cong.Globe, 39th Cong., 1st Sess., 2542.

Whether the privileges and immunities route is followed, or the due process route, the result is the same.

It has been assumed in our decisions that punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519. It is also said in our opinions

Page 242

that the proscription of cruel and unusual punishments 'is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.' Weems v. United States, supra, 217 U.S. at 378, 30 S.Ct., at 553. A like statement was made in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, that the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'

The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions.

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, or if it is imposed under a procedure that gives room for the play of such prejudices.

There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature:2

'Following the Norman conquest of England in 1066, the old system of penalties, which ensured equality between crime and punishment, suddenly disappeared. By the time systematic judicial records were kept, its demise was almost complete. With the exception of certain grave crimes for which the punishment was death or outlawry, the arbitrary fine was replaced by a discretionary

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amercement. Although amercement's discretionary character allowed the circumstances of each case to be taken into account and the level of cash penalties to be decreased or increased accordingly, the amercement presented an opportunity for excessive or oppressive fines.

'The problem of excessive amercements became so prevalent that three chapters of the Magna Carta were devoted to their regulation. Maitland said of Chapter 14 that 'very likely there was no clause in the Magna Carta more grateful to the mass of the people.' Chapter 14 clearly stipulated as fundamental law a prohibition of excessiveness in punishments:

"A free man shall not be amerced for a trivial offense, except in accordance with the degree of the offence; and for a serious offence he shall be amerced according to its gravity, saving his livelihood; and a merchant likewise, saving his merchandise; in the same way a villein shall be amerced saving his wainage; if they fall into our mercy. And none of the aforesaid amercements shall be imposed except by the testimony of reputable men of the neighborhood."

The English Bill of Rights, enacted December 16, 1689, stated that 'excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'3 These were the words chosen for our Eighth Amendment. A like provision had been in Virginia's Constitution of 1776 4 and in the constitutions

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of seven other States.5 The Northwest Ordinance, enacted under the Articles of Confederation, included a prohibition cruel and unusual punishments.6 But the debates of the First Congress on the Bill of Rights throw little light on its intended meaning. All that appears is the following:7

'Mr. Smith, of South Carolina, objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite.

'Mr. Livermore: The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.'

The words 'cruel and unusual' certainly include pen-

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alties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is 'cruel and unusual' to apply the death penalty—or any other penalty—selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.8 Judge Tuttle, indeed, made abundantly clear in Novak v. Beto, 5 Cir., 453 F.2d 661, 673—679 (CA5) (concurring in part and dissenting in part),...

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3755 practice notes
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...in representing Gregory Resnover. In this regard, it is necessary and desirable to remember some relevant history. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 was decided in 1972 and in effect threw judicial cold water on all death penalty prosecutions in Indiana and thro......
  • U.S. v. Friend, No. Crim.A. 3:99CR201-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 19, 2000
    ...information as possible to assure that the sentence actually imposed is individualized.6 In 1972, the Supreme Court, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the imposition and carrying out of the death penalty as it then existed in the states of G......
  • Williams v. Chrans, No. 87 C 02084.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 5, 1990
    ...in a meaningful way "the few cases in which the death penalty is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J., concurring).742 F. Supp. 497 V. Constitutionality of the Illinois Death Penalty Stat......
  • U.S. v. Cheely, Nos. 92-30257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 11, 1994
    ...(en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). 1. Death Penalty Jurisprudence Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), "sentencing juries had almost complete discretion in determining whether a given defendant would be se......
  • Request a trial to view additional results
3694 cases
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...in representing Gregory Resnover. In this regard, it is necessary and desirable to remember some relevant history. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 was decided in 1972 and in effect threw judicial cold water on all death penalty prosecutions in Indiana and thro......
  • U.S. v. Friend, No. Crim.A. 3:99CR201-01.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • April 19, 2000
    ...information as possible to assure that the sentence actually imposed is individualized.6 In 1972, the Supreme Court, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the imposition and carrying out of the death penalty as it then existed in the states of G......
  • Williams v. Chrans, No. 87 C 02084.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 5, 1990
    ...in a meaningful way "the few cases in which the death penalty is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J., concurring).742 F. Supp. 497 V. Constitutionality of the Illinois Death Penalty Stat......
  • U.S. v. Cheely, Nos. 92-30257
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 11, 1994
    ...(en banc), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). 1. Death Penalty Jurisprudence Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), "sentencing juries had almost complete discretion in determining whether a given defendant would be se......
  • Request a trial to view additional results
3 firm's commentaries
  • <em>Furman</em> at 50: so much and so little
    • United States
    • LexBlog United States
    • June 29, 2022
    ...date exactly 50 years ago, the US Supreme Court handed down its remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972). All nine Justices wrote separate opinions in Furman, resulting in one of the longest decision in the Court’s history. But the actual opinion of the Cou......
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    • LexBlog United States
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  • <em>Furman</em> at 50: some recent notable coverage
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    • LexBlog United States
    • July 11, 2022
    ...in this recent post, the US Supreme Court’s remarkable death penalty opinion in Furman v. Georgia, 408 U.S. 238 (1972), is now a half century and I have not decided to create a series of “Furman at 50” posts. Unsurprisingly, I am not the only one to note the Furman milestone, and here is a ......
59 books & journal articles
  • Institutionalizing the Culture of Control
    • United States
    • International Criminal Justice Review Nbr. 24-4, December 2014
    • December 1, 2014
    ...v. Wainwright, 477 U.S. 399 (1986)Francis v. Franklin, 471 U.S. 307 (1985)Franklin v. Lynaugh, 487 U.S. 164 (1988)Furman v. Georgia, 408 U.S. 238 (1972)Gardner v. Florida, 430 U.S. 349 (1977)Godfrey v. Georgia, 446 U.S. 420 (1980)Godinez v. Moran, 509 U.S. 389 (1993)Graham v. Collins, 506 U......
  • Cruel and Unusual Non-Capital Punishments
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    • American Criminal Law Review Nbr. 58-4, October 2021
    • October 1, 2021
    ...Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739, 1764 (2008). 7. See Furman v. Georgia, 408 U.S. 238, 258 (1972) (per curiam); see also Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L. REV. 1, 58 (2007) (explaining that the Supreme Cour......
  • THE PRECEDENTIAL EFFECTS OF THE SUPREME COURT'S EMERGENCY STAYS.
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    • Harvard Journal of Law & Public Policy Vol. 44 Nbr. 3, June 2021
    • June 22, 2021
    ...system of criminal justice."). (185.) Cole v. Texas, 499 U.S. 1301, 1301 (1991). (186.) Gregg, 428 U.S. at 188 (quoting Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., (187.) GARNER ET AL., supra note 13, at 214-15 (discussing relative precedential weights to be assigned to per curi......
  • Guiding Presidential Clemency Decision Making
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    • The Georgetown Journal of Law & Public Policy Nbr. 18-2, July 2020
    • July 1, 2020
    ...a series of aggravating and mitigating factors can alleviate the arbitrariness forbidden by the Eighth Amendment under Furman v. Georgia, 408 U.S. 238 (1972)). 276. Pub. L. No. 98-473, Ch. II, 98 Stat. 2031 (codif‌ied as amended at 18 U.S.C. § 3551 and 28 U.S.C. §§ 991–98 (2019)). 277. See ......
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