Wednesday Writs: Furman v Georgia and the Death Penalty

The lethal injection room at San Quentin State Prison. Photo by California Department of Corrections and Rehabilitation [Public domain]

L1: In 1972, Charles Manson’s death sentence was commuted to life in prison. It was not because ol’ Charlie gained sympathy somewhere along the line; rather, he was one of many who benefited from the cases of three black men,¹ two from Georgia and one from Texas, who appealed their capital sentences to the US Supreme Court and won. The majority opinion in these cases, consolidated in our case of the week as Furman v. Georgia, can be cut-and-pasted right here in its entirety:

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.D.2d 501 (1969). Petitioner in No. 69-5031 was convicted of rape in Texas, and was sentenced to death pursuant to 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 (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

That’s it. Three paragraphs, and condemned men (and women, probably) across the country breathed a sigh of reprieve. So we are done here, then?

No, my lot in life is not so happy as to get by with only three paragraphs to explain. No. The majority in the 5-4 Furman v. Georgia decision may have been a short per curiam, but all five of the justices in the majority wrote their own concurrence. Not only that, but all four dissenting justices wrote separately, as well. And after we discuss their reasons, we need to talk about the decision issued just 4 years later in Gregg v. Georgia, which allowed the re-institution of the death penalty.

If this seems an inexplicably fast 180 degree turn, note the bolded words in the quoted section above. The death penalty, as imposed “in these cases”, constituted cruel and unusual punishment. But if it was so narrowly applicable on its face, how did Furman lead to a nationwide moratorium on the death penalty? Because of what the opinion doesn’t say. Giving no official rationale to its decision means states were left to wonder what, exactly, the Court found objectionable in those three consolidated cases, with no way of knowing whether their own death penalty cases would likewise be invalidated.

To parse what understanding we can from 9 separate opinions, let’s start with a basic recitation of the underlying facts:

• William Henry Furman, the named plaintiff, was convicted in Georgia of shooting a man to death while fleeing after breaking into the man’s home. Furman was a 26 year old black man with a 6th grade education. His victim was white. After a psychological assessment while awaiting trial, he was diagnosed as “mentally deficient.” He was the only one of the three condemned men to have been convicted of murder.
• Luscious Jackson was a 21 year old black man convicted in Georgia of raping a white woman while holding scissors against her neck. By then he was already a convicted felon who had escaped custody. He was said to be of average intellect.
• Elmer Branch, also black, was convicted of raping a 65-year-old widow at gunpoint. He was also a previously convicted felon, had roughly a fifth grade education, and was “found to be a borderline mental deficient and well below the average IQ of Texas prison inmates.”

* * *

The first concurrence was written by Justice Douglas. He notes that this case was not the first instance in which the Court contemplated the constitutionality of the death penalty. The Court had always assumed that capital punishment itself was not cruel and unusual punishment, so long as the method by which it is carried out is not “inhuman or barbarous.” Moreover, he argued, what constitutes a cruel and unusual punishment is subject to evolve along with society and what may have once been acceptable may be deemed cruel by a more modern people.

Wrote Douglas, “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.” He opined that the selective application of the death penalty to minorities who are “outcasts of society” and unpopular in a manner that would not be tolerated if imposed “across the board” was certainly “unusual” in the meaning of the Eighth Amendment.

In support of his contention that the death penalty was being applied selectively to minorities, Douglas cited a study of executions in Texas between 1924 and 1968. The study found that in cases of co-defendants tried separately, where one defendant was white and the other black, several times the black defendant was sentenced to death while the white defendant was given life. Furthermore, black defendants charged with rape were far more likely to receive the death penalty than white convicted rapists. Douglas noted that incidents in which wealthy defendants were given the death penalty could not be found. “The Leopolds and Loebs are given prison terms, not sentenced to death.”

Douglas concedes that the record in the three cases at hand do not offer proof that the defendants were sentenced to die because they were black. However, he found it unjust that there were no standards applicable to deciding who lives and dies; a defendant’s ultimate fate was “dependent on the whims of one man or 12.” Because of the arbitrary and discriminatory way the death penalty was applied, Douglas agreed with the decision of the Court to overturn the death sentences of the three defendants.

Justice Brennan’s concurrence points out that even at the time of the Constitutional Convention, founders acknowledged that the definition of cruel and unusual was subject to change over the years. Brennan quotes Patrick Henry:

. . . Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our [Virginia] bill of rights. — ‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Are you not, therefore, now calling on those gentlemen who are to compose Congress, to . . . define punishments without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more — you depart from the genius of your country. . .

The concern was not universal among the men who would build the Constitution and our bill of rights. Said Congressman Livermore of the House of Representatives during debates over the 8th Amendment:  “…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?”

Since the body went on to enact the 8th Amendment, as Brennan points out, they were aware its effect could be to limit the sorts of punishments available to correct the convicted and thus limit the legislature’s power to enact them.

Brennan then attempted to craft some criteria to determine whether a punishment was “degrading to human dignity” and therefore, cruel and unusual. The four factors he enumerated were that 1) the punishment is “unusually severe”; 2) there is a strong likelihood that it is “inflicted arbitrarily”; 3) the penalty is “substantially rejected by society”; and 4) there exist less severe methods. Along with a painstaking defense of his analysis under each factor, he sums up his analysis of the death penalty under this test in one sentence: “…it is a denial of human dignity for the State arbitrarily to subject a person to an unusually severe punishment that society has indicated it does not regard as acceptable, and that cannot be shown to serve any penal purpose more effectively than a significantly less drastic punishment. Under these principles and this test, death is today a “cruel and unusual” punishment.”

Justice Stewart’s concurrence agreed with the majority rule but disagreed with Douglas and Brennan’s pronouncement of all death penalty sentences as violative of the constitution. He posits that there may be certain crimes so abhorrent that the justification of retribution significantly outweighs any considerations of rehabilitation or reform and provides a necessary, unparalleled deterrence. Failure to satisfy such public outcry, he warns, may sow the seeds of anarchy and vigilante justice.

Despite advocating that some men just need killin’, Justice White nevertheless finds that the imposition of the death penalties in these cases was capricious:

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… 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.

Justice White, like Justice Stewart, was unwilling to go so far as to opine that there could exist no capital punishment system that passes constitutional muster. He argues that the punishment is so rarely imposed that it ceases to have the deterrent effect it should have, because “the threat of execution is too attenuated to be of substantial service to criminal justice.” It would seem that the deterrent effect, rather than punishment, is of paramount importance to White, and without it, execution is simply “pointless and needless extinction of life.”  Oddly, White’s analysis of whether the death penalty is cruel and unusual is based on how much it benefits the government rather than its effect on the condemned: “A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Justice Marshall agreed with Brennan that the death penalty was unconstitutional in all cases. After a lengthy but informative delve into the historical underpinnings of the 8th Amendment, Marshall discussed Court precedent in cases alleging that a particular penalty was unconstitutional: a ten year sentence for conspiracy to defraud, upheld (Howard v. Fleming, 1903); 15 years hard labor in chains for falsifying an official document, deemed unconstitutional (Weems v. US in 1910); a second attempted electrocution after a botched first attempt, upheld (Louisiana ex rel Francis v. Resweber, 1947, discussed previously here in Writs); expatriation for wartime desertion, deemed unconstitutional (Trop v. Dulles, 1958); and 90 days in jail for the crime of drug addiction, deemed unconstitutional (Robinson v. California, 1962.)

Using the principles from these cases, Marshall set forth his own set of reasons for which a punishment may be deemed cruel and unusual.

First, whether or not great physical pain is experienced. To this end, Marshall mentions examples of torture–thumb screws, the rack, etc.– as methods that have been prohibited since the passage of the Bill of Rights. Any similar, torturous punishment would be contrary to the Eighth Amendment.

Second, is it “unusual”, i.e., theretofore unknown or unused in the history of American law for a particular crime?

Third, is the sentence excessive and serving of no legislative purpose? Writes Marshall “[I]t should also be noted that the “cruel and unusual” language of the Eighth Amendment immediately follows language that prohibits excessive bail and excessive fines. The entire thrust of the Eighth Amendment is, in short, against “that which is excessive.”

Finally, even if the punishment is not excessive and serves a valid legislative purpose, it is still invalid if public sentiment is against it. If the general public “abhors” capital punishment the way our ancestors abhorred drawing and quartering other such horrors, then it, too would be unconstitutional.

Marshall concludes that capital punishment runs afoul of all four of these tests. To get there, he discusses the history of the death penalty in the United States, citing several historical treatises. He notes that it began as a sort of government-sanctioned mode of vengeance, carrying out that which the public would otherwise do itself. As of 1800, England had some 200 death penalty-eligible crimes; it was much less common in the colonies, though the earliest list of capital crimes in the US dates back to Massachusetts Bay Colony in 1636, and included such crimes as blasphemy, witchcraft, perjury and adultery, with each enumerated crime tied to a verse from the Old Testament.

As law in the colonies became more secular, the list of capital offenses shrunk until the “average colony” had an average of 12. Executions were common, in part because of a lack of a system to house the criminally minded and keep society free of them. Around the time of the American Revolution, the first groups dedicated to advocating for the incarcerated formed, and some scholars and leaders began to question the need for and propriety of capital punishment. William Bradford, attorney general of Pennsylvania and future AG of the US, advocated for the abolition of the death penalty, though other colonies did not adopt his position. Nevertheless, abolishing the death penalty became very popular over the first half of the 19th century, until the Civil War. Even after the war, states continued to alter or abolish the practice, narrowing the crimes to which it was applicable, doing away with mandatory death sentences, or giving juries the right to decide sentencing.

The momentum stopped after the beginning of the 20th century, as public executions ceased and the methods by which the condemned were put to death became less obviously gruesome. At the time of Furman, Marshall points out, 41 states had capital punishment for at least one crime.

Marshall lists six purposes of capital punishment: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions, eugenics, and economy. He then dispenses with each in turn, finding that the death penalty was not necessary in achieving these ends, to the extent that they should be achieved– he deemed encouragement of confessions and pleas to be an improper justification under the constitution, disregarded eugenics for reasons unnecessary to espouse here, and found the economic justification unpersuasive in light of the cost of capital punishment.

Marshall’s lengthy concurrence (which includes 165 footnotes, some of which are multiple paragraphs addressing the arguments of his brethren, and 2 appendices) goes on to argue passionately against the death penalty for other reasons, including the possibility of executing innocent people. In the interest of saving space and time, I’ll skip to his summation:

In striking down capital punishment, this Court does not malign our system of government. On the contrary, it pays homage to it. Only in a free society could right triumph in difficult times, and could civilization record its magnificent advancement. In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute. We achieve “a major milestone in the long road up from barbarism” and join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.

1. Chief Justice Burger’s dissent, joined by Justices Blackmun, Powell, and Rhenquist (who nevertheless each felt the need to write their own), criticized the majority for “legislating”, invading the province of both the legislature and the jury. He says that he would join with Justice Brennan or Justice Marshall if it were the Court’s job to legislate, but it isn’t. He disagrees with the majority opinions as to the definition of “cruel and unusual” or that it would by definition apply to the death penalty. He points out the language of the Double Jeopardy Clause against being “twice put in jeopardy of life”, and the clause requiring due process before one is “deprived of life, liberty, or property” as proof that the Constitution contemplated the taking of lives as a possible consequence of a criminal prosecution. Further, he finds no validity to the contention that society and its “evolving standards of decency” has rejected capital punishment. Though juries impose the sentence rarely, Burger finds this a refinement, rather than a rejection, of capital punishment.

Burger also rejects Marshall’s analysis of the efficacy of the punishment for achieving legislative purposes, finding that “efficacy” should not be part of the decision.

Justice Blackmun, writing for himself, begins by writing of his own abhorrence of the death penalty:

Cases such as these provide for me an excruciating agony of the spirit. I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by finite minds. That distaste is buttressed by a belief that capital punishment serves no useful purpose that can be demonstrated. For me, it violates childhood’s training and life’s experiences, and is not compatible with the philosophical convictions I have been able to develop. It is antagonistic to any sense of “reverence for life.” Were I a legislator, I would vote against the death penalty for the policy reasons argued by counsel for the respective petitioners and expressed and adopted in the several opinions filed by the Justices who vote to reverse these judgments.

Nevertheless, he agrees with Burger that the decision here invades the province of the legislature.

Justice Powell, joined by Burger, Blackmun, and Rehnquist, echos Justice Burger’s reliance on text elsewhere in the Constitution that contemplates the possible loss of life as a punishment for crime, and thus never intended to include the death penalty as a whole as a cruel and unusual punishment. Instead, he advocates a case-by-case analysis to determine the constitutionality of an imposed death sentence. He also accuses the Court of wantonly discarding precedent, violating judicial restraint and disregarding the separation of powers. He does not deny that there may be occasions in which the death penalty is excessive, or that a method of execution may be unconstitutionally cruel, but the blanket prohibition created by the majority is nevertheless unwise. He acknowledges that the poor and minorities are disproportionately affected by the death penalty, but calls it an “unfortunate byproduct” that does not reach constitutional proportions.

If discriminatory impact renders capital punishment cruel and unusual, it likewise renders invalid most of the prescribed penalties for crimes of violence. The root causes of the higher incidence of criminal penalties on “minorities and the poor” will not be cured by abolishing the system of penalties. Nor, indeed, could any society have a viable system of criminal justice if sanctions were abolished or ameliorated because most of those who commit crimes happen to be underprivileged.

Last but not least, Justice Rehnquist joined by the other three dissenters writes to echo dismay over perceived judicial overreach:

The most expansive reading of the leading constitutional cases does not remotely suggest that this Court has been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court.

In the aftermath of Furman, states spent the next four years rewriting their laws to assuage the Court’s fears about arbitrary imposition of the death penalty. Beginning in 1976 with Gregg v. Georgia, the Court backtracked from its blanketed prohibition, finding that the death penalty was not unconstitutional in all instances. In Gregg, Georgia provided for bifurcated trials, one to establish guilt and one as to sentencing. The state was also able to articulate jury findings of specific facts as to severity of the crime and the “nature of the defendant” to defend the sentencing. The Gregg decision was 7-2, with stalwart abolitionists Marshall and Brennan dissenting.

However, in 1977, in Coker v. Georgia, the Court held that the death penalty was unconstitutional in cases of rape of adult women, finding it too severe in proportion to the crime. In Kennedy v. Louisiana in 2008, the Court expanded the Coker decision to rapists of children, and prohibited the death penalty for any case of a crime against an individual in which the victim is not killed.

L2: The Department of Defense has thoughts for the president regarding the wearing of military-like garb by law enforcement and border patrol agents being used to quell rioting.

L3: Saint Louis Circuit Attorney Kim Gardner has filed charges against Patricia and Mark McCloskey, both lawyers, for pointing guns at protesters outside their home. The governor and attorney general of Missouri have intervened on the couple’s behalf. 

L4: Some McDonalds restaurants in North Carolina are breaking child labor laws with younger employees. That’s a McProblem for the Labor Department.

L5: There were ten women in Harvard Law’s Class of 1956. One is currently the oldest sitting justice in the United States Supreme Court. What became of the other 9?

L6: The bar exam is no fun at the best of times, and this year the stress is amplified by uncertainty and delays. On top of that, states like to impose rules seemingly aimed at making applicants as uncomfortable as possible, like making them wear court room attire and banning certain items of clothing. Some states, including mine, have instituted a ban on menstrual products, I guess in case someone decides to- ahem- internalize the rule against perpetuities?

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1. Technically, Manson benefited from a case decided by the California Supreme Court the same time as the Furman decision.