U.S. Supreme Court Abolishes the Death Penalty

In Furman v. Georgia, the Supreme Court decided that the death penalty as applied in 1972 constituted cruel and unusual punishment in violation of the U.S. Constitution.

Summary of Event

Since ancient times and the injunction of “an eye for an eye,” capital punishment has been an accepted practice. In the United States, there have been periods when efforts to abolish capital punishment have had some influence, balanced by periods during which the trend was to sanction its use. From the end of the eighteenth century until the U.S. Civil War (1861-1865), opponents of capital punishment worked to reduce the number of crimes punishable by death. With the Civil War came a period of acceptance of capital punishment. Another movement in the early twentieth century to abolish the death penalty ended with the beginning of World War I. After 1920, however, there was a gradual decline in the United States in interest in and use of the death penalty. In 1930, 155 persons were executed. In 1960, the death penalty was used only 56 times. Supreme Court, U.S.;capital punishment
Capital punishment;Supreme Court decisions
Eighth Amendment (U.S. Constitution)
[kw]U.S. Supreme Court Abolishes the Death Penalty (June 29, 1972)
[kw]Supreme Court Abolishes the Death Penalty, U.S. (June 29, 1972)
[kw]Court Abolishes the Death Penalty, U.S. Supreme (June 29, 1972)
[kw]Death Penalty, U.S. Supreme Court Abolishes the (June 29, 1972)
Supreme Court, U.S.;capital punishment
Capital punishment;Supreme Court decisions
Eighth Amendment (U.S. Constitution)
[g]North America;June 29, 1972: U.S. Supreme Court Abolishes the Death Penalty[00790]
[g]United States;June 29, 1972: U.S. Supreme Court Abolishes the Death Penalty[00790]
[c]Laws, acts, and legal history;June 29, 1972: U.S. Supreme Court Abolishes the Death Penalty[00790]
[c]Civil rights and liberties;June 29, 1972: U.S. Supreme Court Abolishes the Death Penalty[00790]
[c]Human rights;June 29, 1972: U.S. Supreme Court Abolishes the Death Penalty[00790]
Furman, William Henry
Amsterdam, Anthony
Goldberg, Arthur J.
Bedau, Hugo Adam

Around this time, in 1959, the American Law Institute American Law Institute (ALI), an organization of legal scholars that was little known to the public but widely respected among lawyers, recommended that if the death penalty were to be retained, there should be changes in the statutes allowing its use. The ALI recommended that when there was the possibility of the death penalty, the defendant should have a bifurcated trial: one trial to establish innocence or guilt and another trial to determine the penalty if guilty. The reason for this was to allow the defendant a chance to testify at the penalty phase while still retaining a constitutional right not to speak during the first trial. In addition, the ALI suggested that the death penalty could not be imposed unless the jury found that aggravating circumstances were present and mitigating circumstances were absent. The reason for this recommendation was to provide some guidelines for jurors when they imposed the death penalty.

In 1963, in a case involving a rapist sentenced to death, Justice Arthur J. Goldberg of the Supreme Court disagreed with the majority of justices, who confirmed the rapist’s sentence. Goldberg stated that it was the Supreme Court’s task to determine whether or not the death penalty was constitutional. Lawyers in the Legal Defense Fund Legal Defense Fund (LDF), a branch of the National Association for the Advancement of Colored People National Association for the Advancement of Colored People (NAACP), were encouraged by this statement. Fresh from battles to enforce desegregation, LDF lawyers saw that the death penalty, particularly as it was applied to black men convicted of raping white women, was an area in which they wanted to become involved. By 1967, the LDF had decided to undertake the representation of all inmates on death row. The organization brought several class-action suits on behalf of these inmates. From that date until after the Furman decision in 1972, there was a moratorium on all executions. In the cases brought by the LDF, the attorneys were determined that the Supreme Court eventually would have to answer the question that Goldberg had asked: Is the death penalty constitutional?

Regarding these cases, one commentator has said that the LDF lost every battle except the first and the last. The first battle came in Witherspoon v. Illinois
Witherspoon v. Illinois (1968) in 1968. At issue in this case was whether or not a potential juror who expressed misgivings about the death penalty could be dismissed automatically from jury duty in a capital case. This was the common practice at the time, and the Supreme Court ruled that such a practice was improper. A number of death row inmates were thus entitled to new trials.

This case was the only success for several years. Anthony Amsterdam, a professor at the University of Pennsylvania Law School and later a professor at Stanford Law School, was the key strategist for the LDF in arguing the cases. Several times before Furman, Amsterdam argued in the Supreme Court that juries should have standards, such as aggravating or mitigating circumstances, before them when imposing the death penalty, just as the ALI had recommended. Amsterdam also argued for a bifurcated jury, again as the ALI had suggested. The Supreme Court rejected both arguments in 1971 in McGautha v. California. McGautha v. California (1971)[Macgautha v. California] Following this defeat, the LDF’s only remaining theory with which to challenge the death penalty was to declare that it was cruel and unusual punishment, which is prohibited by the Eighth Amendment to the U.S. Constitution. On June 28, 1971, the Supreme Court announced that it would answer this challenge to the death penalty in the case of Furman v. Georgia.

Furman v. Georgia consisted of four cases involving four African American defendants, all of whom had been sentenced to death. Two of the defendants were murderers and two were rapists. All of the victims were white. The man who gave his name to the case, William Henry Furman, had entered his victim’s home to commit burglary. When his victim discovered him, Furman tried to run away. In the process, Furman’s gun accidentally discharged, killing the victim. Although Furman was found competent to stand trial, it was discovered after the shooting that he was mentally subnormal and subject to psychotic episodes. Nevertheless, he was convicted and sentenced to death. The fate of more than six hundred death row prisoners depended on how the Supreme Court would decide his case.

Several times in the twentieth century, the Court had decided that a punishment meted out to a convicted criminal was cruel and unusual. In the most important case, Trop v. Dulles
Trop v. Dulles (1958) (1958), the Court decided that loss of citizenship for a defendant who had deserted the armed forces during war was cruel and unusual punishment. The Court stated that the Eighth Amendment prohibiting cruel and unusual punishment takes its meaning “from evolving standards of decency that mark the progress of a maturing society.” Implicit in this statement was the sense that the meaning of cruel and unusual punishment could change over time. The justices in Furman were to decide if the “standards of decency” in 1972 had evolved to the point that capital punishment must be abolished.

Anthony Amsterdam argued on behalf of Furman before the Supreme Court in January, 1971. Before the Supreme Court delivered its opinion in June, 1972, the California Supreme Court decided in another case that Amsterdam had argued that the death penalty in California was unconstitutional. Tension mounted concerning what the U.S. Supreme Court would decide in Furman.

On June 29, 1972, a five-to-four majority of the justices found that as it was currently applied, the death penalty constituted cruel and unusual punishment in violation of the Constitution. Each of the nine justices wrote a separate opinion. Two of the justices in the majority, William J. Brennan Brennan, William J. and Thurgood Marshall, Marshall, Thurgood declared that the death penalty was unconstitutional under any circumstance. Justices William O. Douglas, Douglas, William O. Potter Stewart, Stewart, Potter and Byron White White, Byron stated that the death penalty was cruel and unusual punishment because it was arbitrary and capricious in the way it was currently imposed. Some of the dissenters, although personally opposed to the death penalty, stated that it was not up to the Court but to state legislatures to decide the question. Thus, by the narrowest of margins, the Supreme Court in 1972 decided that the death penalty was not constitutional and allowed more than six hundred prisoners to leave death row.


Although the United States briefly joined the rest of the Western world when it abolished capital punishment in Furman v. Georgia in 1972, there were indications in the decision that under certain circumstances the death penalty might be constitutional. One immediate reaction to the decision was that states started rewriting their death penalty statutes. Two years after Furman, twenty-eight states had new statutes. By 1976, thirty-five states had rewritten their death penalty laws. By that time, there were 450 inmates on death row.

In 1976, the Supreme Court agreed to hear the case of Gregg v. Georgia
Gregg v. Georgia (1976) in order to decide whether one of these new statutes was constitutional. The defendant had been convicted of murder and sentenced to death under a new statute. This statute required a bifurcated jury, with separate trials to determine guilt and punishment. It also required that the jury find aggravating circumstances to condemn and consider mitigating circumstances to reprieve, and that there be an automatic appeal of any death sentence imposed, to the highest court in the state. The Supreme Court found that this statute was constitutional, and capital punishment was thus reinstated. In 1977, Gary Gilmore Gilmore, Gary became the first man to be executed since the moratorium on executions was established in 1967.

Since that time, there have been continuing challenges to various aspects of the death penalty. In 1977, the Supreme Court decided that the death penalty was a disproportionate punishment for the crime of rape. In 1987, the Court decided that studies showing that blacks received the death penalty more frequently than whites did not necessarily mean that any racial bias was involved, so the death penalty was not unconstitutional on grounds of discrimination. In 1989, the Court upheld the imposition of the death penalty for a convicted murderer who was mildly to moderately retarded as well as deciding that the death penalty could be imposed on those who were minors at the time of their crime. In June, 1991, the Court decided that victim impact statements are permissible at the sentencing of the defendant. The euphoria that accompanied the Furman decision had long since abated. By the early years of the twenty-first century, there were no indications that the Supreme Court was moving toward ruling against the death penalty. Supreme Court, U.S.;capital punishment
Capital punishment;Supreme Court decisions
Eighth Amendment (U.S. Constitution)

Further Reading

  • Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass.: Harvard University Press, 2002. Presents a well-researched, comprehensive examination of the history of the death penalty in the United States.
  • Bedau, Hugo Adam. The Courts, the Constitution, and Capital Punishment. Lexington, Mass.: Lexington Books, 1977. Provides clear analysis of the cases appearing before the Supreme Court in the period surrounding the Furman decision. Gives all possible constitutional theories against the death penalty and how they have been used, successfully or not. The author is an ardent abolitionist but presents balanced, well-reasoned arguments both for and against the death penalty.
  • Bedau, Hugo Adam, and Chester M. Pierce, eds. Capital Punishment in the United States. New York: AMS Press, 1975. Comprehensive survey of capital punishment after the Furman decision. These essays were collected because the Furman decision left open the constitutionality of the death penalty. The aim was to get as many social scientists as possible to comment on it, particularly concerning its deterrent effects. Includes bibliography and index.
  • Berger, Raoul. Death Penalties: The Supreme Court’s Obstacle Course. 1982. Reprint. Bridgewater, N.J.: Replica Books, 2000. Scholarly work argues that the Court exceeded its proper boundaries in deciding Furman. Posits that the cruel and unusual punishment clause should be interpreted as it was when the Constitution was written.
  • Friendly, Fred W., and Martha J. H. Elliott. “Willie Francis’s Two Trips to the Chair: Punishment and the Death Penalty.” In The Constitution: That Delicate Balance. New York: Random House, 1984. Presents a moving account of one of the times before the Furman decision when the Supreme Court considered the death penalty as cruel and unusual punishment. Francis did not die the first time he was electrocuted, and the Court ruled that it was not cruel and unusual punishment to electrocute him a second time. Francis was so worn down by the appeals process that he acquiesced to the second try and died.
  • Latzer, Barry. Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment. 2d ed. Burlington, Mass.: Butterworth-Heinemann, 2002. Contains excerpts from twenty-five court cases, including Furman v. Georgia. Designed as an introductory text.
  • Meltser, Michael. Cruel and Unusual: The Supreme Court and Capital Punishment. New York: Random House, 1973. Provides complete coverage of the cases, individuals, legal issues, and social trends that led to Furman. Good analysis of cases preceding Furman and of the LDF’s strategy.

U.S. Supreme Court Reinstates the Death Penalty

U.S. Supreme Court Upholds the Constitutionality of Capital Punishment

Amnesty International Exposes the Cruelty of the Death Penalty

U.S. Supreme Court Rules on Execution of the Mentally Retarded and the Young