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Furman v. Georgia

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Full case name
408 U.S. 238 (more)92 S. Ct. 2726; 33 L. Ed. 2d 346; 1972 U.S. LEXIS 169

Prior history
certiorari granted (403 U.S. 952)

Subsequent history
Rehearing denied (409 U.S. 902)

Gregg v Georgia, McCleskey v Kemp, Coker v Georgia, Atkins v Virginia, Roper v Simmons

Furman v georgia a moratorium on the death penalty

Furman v. Georgia, 408 U.S. 238 (1972) was a criminal case in which the United States Supreme Court struck down all death penalty schemes in the United States in 5-4 decision, with each member of the majority writing a separate opinion. Following Furman, to reinstate the death penalty, States had to at least remove arbitrary and discriminatory effects, to possibly satisfy the Eighth Amendment to the United States Constitution.


The decision ruled on the requirement for a degree of consistency in the application of the death penalty. This case led to a de facto moratorium on capital punishment throughout the United States, which came to an end when Gregg v. Georgia was decided in 1976.

The Supreme Court consolidated Jackson v. Georgia and Branch v. Texas with the Furman decision, and thus also invalidated the death penalty for rape (which was confirmed post-Gregg in Coker v. Georgia). The Court had also intended to include the case of Aikens v. California, but between the time Aikens had been heard in oral argument and a decision was to be issued, the Supreme Court of California decided in California v. Anderson that the death penalty violated the state constitution, thus the Aikens case was dismissed as moot since all death sentences in California were reduced.

Furman v georgia court case


In the Furman v. Georgia case, the resident awoke in the middle of the night to find William Henry Furman committing burglary in his house. At trial, in an unsworn statement allowed under Georgia criminal procedure, Furman said that while trying to escape, he tripped and the weapon he was carrying fired accidentally, killing the victim. This contradicted his prior statement to police that he had turned and blindly fired a shot while fleeing. In either event, because the shooting occurred during the commission of a felony, Furman would have been guilty of murder and eligible for the death penalty under then-extant state law, according to the felony murder rule. Furman was tried for murder and was found guilty based largely on his own statement. Although he was sentenced to death, the punishment was never carried out.

Jackson v. Georgia, like Furman, was also a death penalty case confirmed by the Supreme Court of Georgia. Unlike Furman however, the convicted in Jackson had not killed, but attempted to commit armed robbery and committed rape in the process of doing so. Branch v. Texas was brought to the Supreme Court of the United States on appeal on certiorari to the Texas Court of Criminal Appeals. Like Jackson, Branch was convicted of rape.


In a 5-4 decision, the Court's one-paragraph per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. However, the majority could not agree as to a rationale. There was no opinion of the court or plurality as none of the five justices constituting the majority joined in the opinion of any other.

  • Justices Potter Stewart, Byron White and William O. Douglas expressed similar concerns about the apparent arbitrariness with which death sentences were imposed under the existing laws, often indicating a racial bias against black defendants. Because these opinions were the narrowest, finding only that the death penalty as currently applied was cruel and unusual, they are often considered the controlling majority opinions. Stewart wrote:
  • These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. See McLaughlin v. Florida, 379 U.S. 184 (1964) But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

  • Justices William Brennan and Thurgood Marshall concluded that the death penalty was in itself "cruel and unusual punishment", and incompatible with the evolving standards of decency of a contemporary society.
  • Dissents

    Chief Justice Burger and Justices Harry Blackmun, Lewis F. Powell, and William H. Rehnquist, each appointed by President Richard Nixon, dissented. They argued that a punishment provided in 40 state statutes (at the time) and by the federal government could not be ruled contrary to the so-called "evolving standard of decency".


    The Furman decision caused all death sentences pending at the time to be reduced to life imprisonment, and was described by scholars as a "legal bombshell". The next day, columnist Barry Schweid wrote that it was "unlikely" that the death penalty could exist anymore in the United States.

    The Court's decision forced states and the U.S. Congress to rethink their statutes for capital offenses to assure that the death penalty would not be administered in a capricious or discriminatory manner.

    In the following four years, 37 states enacted new death penalty laws aimed at overcoming the court's concerns about arbitrary imposition of the death penalty. Several statutes mandating bifurcated trials, with separate guilt-innocence and sentencing phases, and imposing standards to guide the discretion of juries and judges in imposing capital sentences, were upheld in a series of Supreme Court decisions in 1976, led by Gregg v. Georgia. Other statutes enacted in response to Furman which mandated imposition of the death penalty upon conviction of a certain crime were struck down in cases of that same year.


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