Gong, Ze 5/11/2016 For Educational Use Only Furman v. Georgia, 408 U.S. 238 (1972) 92 S.Ct. 2726, 33 L.Ed.2d 346 KeyCite Yellow Flag - Negative Treatment West Headnotes (1) Called into Doubt by Neal v. Puckett, 5th Cir.(Miss.), March 15, 2002 [1] Constitutional Law 92 S.Ct. 2726 Capital Punishment; Death Penalty Supreme Court of the United States Constitutional Law Proceedings William Henry FURMAN, Petitioner, Constitutional Law v. Execution of Sentence State of GEORGIA. Sentencing and Punishment Lucious JACKSON, Jr., Petitioner, Death Penalty as Cruel or Unusual v. Punishment State of GEORGIA. Imposition and carrying out of death penalty Elmer BRANCH, Petitioner, in cases before court would constitute cruel v. and unusual punishment in violation of Eighth State of TEXAS. and Fourteenth Amendments. Code Ga. §§ 26-1005, 26-1302; Vernon's Ann.Tex.P.C. art. Nos. 69-5003, 69-5030, 69-5031. 1189; U.S.C.A.Const. Amends. 8, 14. | Argued Jan. 17, 1972. 771 Cases that cite this headnote | Decided June 29, 1972. Certiorari was granted to review decisions of the Supreme Court of Georgia, 225 Ga. 253, 167 S.E.2d 628, and 225 Attorneys and Law Firms Ga. 790, 171 S.E.2d 501, affirming imposition of death **2727 *238 Anthony G. Amsterdam, Stanford, Cal., for penalty on defendants convicted of murder and rape, and petitioner Furman. to review judgment of the Court of Criminal Appeals of Texas, 447 S.W.2d 932, affirming imposition of death penalty Jack Greenberg, New York City, for petitioner Jackson. on defendant convicted of rape. The Supreme Court held that imposition and carrying out of death penalty in cases Melvyn Carson Bruder, Dallas, Tex., for petitioner Branch. before court would constitute cruel and unusual punishment in violation of Eighth and Fourteenth Amendments. Dorothy T. Beasley, Atlanta, Ga., for respondent State of Georgia. Judgment in each case reversed in part and cases remanded. Charles Alan Wright, Austin, Tex., for respondent State of Texas. Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White and Mr. Justice Marshall filed Willard J. Lassers and Elmer Gertz, Chicago, Ill., for amici separate opinions in support of judgments. curiae. Mr. Chief Justice Burger, Mr. Justice Blackmum, Mr. Justice Opinion Powell and Mr. Justice Rehnquist filed separate dissenting opinions. *239 PER CURIAM. Petitioner in No. 69-5003 was convicted of murder in Georgia Opinion on remand, 229 Ga. 731, 194 S.E.2d 410. and was sentenced to death pursuant to Ga.Code Ann. s © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 Gong, Ze 5/11/2016 For Educational Use Only Furman v. Georgia, 408 U.S. 238 (1972) 92 S.Ct. 2726, 33 L.Ed.2d 346 26-1005 (Supp.1971) (effective prior to July 1, 1969). 225 Ga. 253, 167 S.E.2d 628 (1969). Petitioner in No. 69-5030 *241 That the requirements of due process ban cruel and was convicted of rape in Georgia and was sentenced to unusual punishment is now settled. Louisiana ex rel. Francis death pursuant to Ga.Code Ann. s 26-1302 (Supp.1971) v. Resweber, 329 U.S. 459, 463, and 473-474, 67 S.Ct. 374, (effective prior to July 1, 1969). 225 Ga. 790, 171 S.E.2d 376, and 381, **2728 91 L.Ed. 422 (Burton, J., dissenting); 501 (1969). Petitioner in No. 69-5031 was convicted of Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, rape in Texas and was sentenced to death pursuant to 1420, 8 L.Ed.2d 758. It is also settled that the proscription of Vernon's Tex.Penal Code, Art. 1189 (1961). 447 S.W.2d 932 cruel and unusual punishments forbids the judicial imposition (Ct.Crim.App.1969). Certiorari was granted limited to the of them as well as their imposition by the legislature. Weems following question: ‘Does the imposition and carrying out v. United States, 217 U.S. 349, 378-382, 30 S.Ct. 544, of the death penalty in (these cases) constitute cruel and 553-555, 54 L.Ed. 793. unusual punishment in violation of the Eighth and Fourteenth Congressman Bingham, in proposing the Fourteenth Amendments?’ 403 U.S. 952, 91 S.Ct. 2287, 29 L.Ed.2d Amendment, maintained that ‘the privileges or immunities of 863 (1971). The Court holds that the imposition *240 and citizens of the United States' as protected by the Fourteenth carrying out of the death penalty in these cases constitute Amendment included protection against ‘cruel and unusual cruel and unusual punishment in violation of the Eighth punishments:’ and Fourteenth Amendments. The judgment in each case is ‘(M)any instances of State injustice and oppression have therefore reversed insofar as it leaves undisturbed the death already occurred in the State legislation of this Union, of sentence imposed, and the cases are remanded for further flagrant violations of the guarantied privileges of citizens proceedings. So ordered. of the United States, for which the national Government Judgment in each case reversed in part and cases remanded. 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 Mr. Justice DOUGLAS, Mr. Justice BRENNAN, Mr. laws within this Union upon citizens, not only for crimes Justice STEWART, Mr. Justice WHITE, and Mr. Justice committed, but for sacred duty done, for which and against MARSHALL have filed separate opinions in support of the which the Government of the United States had provided no judgments. remedy and could provide none.’ Cong.Globe, 39th Cong., 1st Sess., 2542. THE CHIEF JUSTICE, Mr. Justice BLACKMUN, Mr. Justice POWELL, and Mr. Justice REHNQUIST have filed separate dissenting opinions. Whether the privileges and immunities route is followed, or the due process route, the result is the same. Mr. Justice DOUGLAS, concurring. It has been assumed in our decisions that punishment by death In these three cases the death penalty was imposed, one of is not cruel, unless the manner of execution can be said to them for murder, and two for rape. In each the determination be inhuman and barbarous. In re Kemmler, 136 U.S. 436, of whether the penalty should be death or a lighter punishment 447, 10 S.Ct. 930, 933, 34 L.Ed. 519. It is also said in our was left by the State to the discretion of the judge or of the opinions *242 that the proscription of cruel and unusual jury. In each of the three cases the trial was to a jury. They are punishments ‘is not fastened to the obsolete, but may acquire here on petitions for certiorari which we granted limited to the meaning as public opinion becomes enlightened by a humane question whether the imposition and execution of the death justice.’ Weems v. United States, supra, 217 U.S. at 378, 30 penalty constitute ‘cruel and unusual punishment’ within the S.Ct., at 553. A like statement was made in Trop v. Dulles, meaning of the Eighth Amendment as applied to the States 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 by the Fourteenth. 1 I vote to vacate each judgment, believing standards of decency that mark the progress of a maturing that the exaction of the death penalty does violate the Eighth society.’ and Fourteenth Amendments. © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Gong, Ze 5/11/2016 For Educational Use Only Furman v. Georgia, 408 U.S. 238 (1972) 92 S.Ct. 2726, 33 L.Ed.2d 346 The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books The English Bill of Rights, enacted December 16, 1689, and what may be done with the law in its application do, or stated that ‘excessive bail ought not to be required, nor may, lead to quite different conclusions. excessive fines imposed, nor cruel and unusual punishments inflicted.' 3 These were the words chosen for our Eighth It would seem to be incontestable that the death penalty Amendment. A like provision had been in Virginia's inflicted on one defendant is ‘unusual’ if it discriminates 4 against him by reason of his race, religion, wealth, social Constitution of 1776 and in the constitutions *244 of seven position, or class, or if it is imposed under a procedure that other States. 5 The Northwest Ordinance, enacted under the gives room for the play of such prejudices. Articles of Confederation, included a prohibition cruel and unusual punishments. 6 But the debates of the First Congress There is evidence that the provision of the English Bill on the Bill of Rights throw little light on its intended meaning. of Rights of 1689, from which the language of the Eighth 7 Amendment was taken, was concerned primarily with All that appears is the following: selective or irregular application of harsh penalties and that ‘Mr. Smith, of South Carolina, objected to the words ‘nor its aim was to forbid arbitrary and discriminatory penalties of cruel and unusual punishments;’ the import of them being too indefinite. a severe nature: 2 ‘Mr. Livermore: The clause seems to express a great deal of ‘Following the Norman conquest of England in 1066, the humanity, on which account I have no objection to it; but as old system of penalties, which ensured equality between it seems to have no meaning in it, I do not think it necessary. crime and punishment, suddenly disappeared.