« Is the Bruen Second Amendment ruling really "an important step to ending mass incarceration"? | Main | R Kelly given 30-year federal prison sentence for multiple racketeering and sex trafficking offenses »
June 29, 2022
Furman at 50: so much and so little
On this 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 Court is a so short that I can be reprinted it in full here:
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 imposition 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.
There are so many interesting elements to the Court's work in Furman, and so much to what has transpired in the subsequent half century, I cannot do this topic any kind of justice in just a few blog posts. But, with summer just getting started, perhaps I will do a series of posts (and welcome guest posters) through the summer months on Furman at 50. As the title of this post suggests, one theme I always develop when I teach Furman is that the ruling and its aftermath can be viewed as having achieved so much or as having achieved so little. I am not sure which framing may be central in future posts, but I suppose time will tell how the half-century spirit of Furman might move me.
June 29, 2022 at 01:51 PM | Permalink
Comments
Part of the problem with assessing the impact of Furman is that there was nothing that could even closely resemble an opinion of the court. It is a prime example of why Chief Justice Marshall moved the court away from the practice of seriatim opinions to having one opinion for the entire court when possible.
There were, of course, some impacts from the seed laid down in those opinions and in the opinions in the Gregg cases upholding some, but not all, of the new death penalty statutes several years later. Arguably, it is the Gregg cases that have proven to have the longer impact setting up a system in which the death penalty can neither be too hot (approaching mandatory) or too cold (approaching unfettered discretion) with lots of arguments about what has to be permitted under Gregg and nitpicking fine details of the limits on how to structure the penalty phase and jury instructions,
Posted by: tmm | Jun 29, 2022 4:15:02 PM
Largely for the reasons discussed by tmm, Furman, although quite a big deal at the time, turned out to be one of the least consequential cases of its day. Time has passed it by.
Posted by: Bill Otis | Jun 30, 2022 11:10:38 PM
The ruling in Furman completely reoriented capital punishment law and practice.
At the time of Furman, sixteen states and the federal government allowed the death penalty for adult rape, and many also allowed death for kidnapping. In addition, few gave capital jurors any guidance at all in making the life/death decision. Responding to Furman, only three states reenacted the death penalty for adult rape (a big reason it was deemed unconstitutional in Coker), few retained death for kidnapping, and all created by statute some form of guided discretion for capital jurors. And Furman is still good law, as a state could not go back to complete unguided jury life/death decision-making.
It is fair to say that subsequent rulings, from Gregg to Roberts to Coker to Lockett and beyond, more directly define modern capital punishment law and practice. But these rulings and many more still reflect the imprint of Furman.
Posted by: Doug B. | Jun 30, 2022 11:33:52 PM
Doug --
The trends you identify had been underway for years before Furman. While I do not entirely disagree with your post, it seems to me that the main thing by far that has most influenced capital punishment is the murder rate: A few years after it starts going down, death sentences and executions start to go down. This should not come as a big surprise.
There is one case I think potentially could have a huge effect on the DP: Dobbs. If as might happen, Dobbs signals that the courts will take less say over the moral issues in law and the electorate will take more, then the era of "evolving standards of decency" AS DEFINED BY THE ELITES who tend to wind up as judges will be giving way to moral standards as defined by the electorate.
Posted by: Bill Otis | Jul 1, 2022 6:03:29 PM
Bill, though the ALI's Model Penal Code urged state to adopted guided jury discretion in the 1960s, no state had adopted that approach to death sentencing before Furman (and SCOTUS the year earlier had rejected arguments that due process required as much in McGautha). Once Furman was decided, every state retaining capital punishment initially or ultimately embraced the guided discretion model in one form or another.
Practically, very few persons were getting sentenced to death for rape or kidnapping before Furman, but some still did (mostly people of color) AND many could still be indicted on capital charges on these crimes. That was completely eliminated by Furman, and the narrowing rules that flow from Furman and Gregg also served to preclude frequent capital charges for less aggravated murders.
I will stick by my assertion that Furman completely reoriented capital punishment law and practice.
I will not dispute that concerns about murder rates can shape the work of capital prosecutors and juries. But we have seen a huge uptick in murders in the last few years and no corresponding increase in death sentences or executions. COVID is part of the story, but I am not away of any state that repealed the death penalty talking seriously about restoring in.
Your Dobbs point is interesting, though I find it notable that there seems to be no serious effort to reverse 8th Amendment capital precedents like Roper or Atkins or Tison or Eddings or Lockett or Roberts or Furman. This current group of Justices have repeatedly indicated a willingness to review/reverse precedents, and yet nobody seems to be trying to get them to rework their capital punishment jurisprudence.
Posted by: Doug B. | Jul 1, 2022 7:45:31 PM
Doug --
"...we have seen a huge uptick in murders in the last few years and no corresponding increase in death sentences or executions. COVID is part of the story, but I am not away of any state that repealed the death penalty talking seriously about restoring in."
Developments in the on-the-ground application of the DP have a lag time of six or seven years from developments in the murder rate. The murder rate started back up in 2015, so things should start to percolate soon if history is any guide.
"Your Dobbs point is interesting, though I find it notable that there seems to be no serious effort to reverse 8th Amendment capital precedents like Roper or Atkins or Tison or Eddings or Lockett or Roberts or Furman. This current group of Justices have repeatedly indicated a willingness to review/reverse precedents, and yet nobody seems to be trying to get them to rework their capital punishment jurisprudence."
"Nobody" might be an exaggeration. I ain't dead yet. And Dobbs is going to give a jolt of energy to those who have been thinking that the resolution of DP questions should be shifted away from the courts with all their made up "evolving standards" baloney and back toward the electorate. If it can happen with a hot button issue like abortion....................
Posted by: Bill Otis | Jul 2, 2022 1:10:14 PM
So which Eighth Amendment capital precedents are you most eager to try to bring down first, Bill, and what case or cases do you view as good vehicles for their reconsideration?
Posted by: Doug B. | Jul 2, 2022 6:04:27 PM
Doug --
Kent has always been for going after Lockett. I would go after Kennedy v. Louisiana. Of course the worst case of the Court just making it up is Miranda, which is not a DP case but is breathtaking in the extent to which the majority felt free to make stuff up out of thin air (the warnings) and then pretend it was in the Constitution. https://ringsideatthereckoning.substack.com/p/democracy-dies-in-judicial-imperialism
I agree, incidentally, that moral consensus should be part of death penalty decisions, but moral decisions are for the people to make through their elected leaders, not for unelected, elitist judges (Harvard, Yale, Stanford, blah blah blah) mulling what they personally prefer and then having the audacity to proclaim that this is what the Constitution (invisibly) requires. Dobbs makes this point clear in a highly fraught area, and thus paves the way for democratizing law like nothing else in my lifetime.
Posted by: Bill Otis | Jul 2, 2022 10:54:24 PM
It would be quite interesting to see, were Lockett overturned, if any state would change its modern capital statute to restrict mitigating factors that could be considered in capital sentencing. Most state do not now restrict mitigating factors in non-capital cases, so I would be surprised to see a Lockett reversal leading to a dramatic change in capital practice. Similarly, I suspect Kennedy's reversal would not lead to lots of new capital cases for child rape given that so few of these cases were brought prior to Kennedy.
That all said, I first wonder whether and how cases to test Lockett and Kennedy can get to the Court. Under existing doctrine, it is unconstitutional for a state to seek a death sentence for child rape or to preclude consideration of certain mitigating circumstances. Could a state seek a declaratory judgment on these issues? I think Justice Alito and maybe others have express concern about the one-way ratchet of Eighth Amendment doctrines, and I am sincerely curious about how a test case could be developed to enable the Court to reconsider these matters.
I suppose in some other Eighth Amendment case, a majority of the Court could completely rewrite existing jurisprudence -- akin to what seems to be the new reality of the Second Amendment after Bruen. But even then, does a state feel comfortable pursuing capital charges in a rape case or precluding a capital jury from considering all mitigating factors?
Posted by: Doug B. | Jul 3, 2022 1:51:10 PM
