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CourtSpeak: Furman v. Georgia Death Penalty Case (1972)

Criminal Law and Procedure Read more from
Chapter The Burger Court (1969–86)

Justice William Douglas (concurring): “These discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.”

Justice William Brennan (concurring): “Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity.”

Justice Potter Stewart (concurring): “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

Justice Byron White (concurring): “The death penalty is exacted with great infrequency even for the most atrocious crimes … there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”

Justice Thurgood Marshall (concurring): “The death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment…. It is morally unacceptable to the people of the United States at this time in their history.”

Chief Justice Warren Burger (dissenting): “In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly ‘cruel’ in the constitutional sense.”

Justice Harry Blackmun (dissenting): “Athough personally I may rejoice at the Court’s result, I find it difficult to accept or to justify as a matter of history, of law, or of constitutional pronouncement. I fear the Court has overstepped. It has sought and has achieved an end.”

Justice Lewis Powell (dissenting): “In terms of the constitutional role of this Court, the impact of the majority’s ruling is all the greater because the decision encroaches upon an area squarely within the historic prerogative of the legislative branch—both state and federal—to protect the citizenry through the designation of penalties for prohibitable conduct. It is the very sort of judgment that the legislative branch is competent to make and for which the judiciary is ill-equipped.”

Justice William Rehnquist (dissenting): “The task of judging constitutional cases imposed by Art. III cannot for this reason be avoided, but it must surely be approached with the deepest humility and genuine deference to legislative judgement. Today’s decision to invalidate capital punishment is … significantly lacking in those attributes.”

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