DEATH PENALTY DENIED:The 1972 Furman v. Georgia Ruling

JUNE 29, 1972 …

Movies – Conquest of the Planet of the Apes and The Candidate were coming out

JUNE 29, 1972 …

#1 songs - The Candy Man (Sammy Davis), Song Sung Blue (Neil Diamond)

JUNE 29, 1972 …Watergate story - that five men had been arrested for breaking into the Democratic National Committee headquarters in the Watergate Hotel was not yet big news.

The top story on June 29, 1972, was that the death penalty was declared unconstitutional!

http://abcnews.go.com/Archives/video/supreme-court-death-penalty-unconstitutional-10125356

The hiatus lasted just 4 years; executions returned in 1977 …

… and the U.S. has executed 1200+ since then.

Why was the death penalty found unconstitutional in 1972? And is it really so different now?

5 Justices gave 4 reasons:

Brennan: “When examined by the principles applicable under the Cruel and Unusual Punishments Clause, death stands condemned as fatally offensive to human dignity.”

  Marshall: “The question then is not

whether we condone rape or murder, for surely we do not; it

is whether capital punishment is 'a punishment

no longer consistent with our own self-respect’

and, therefore, violative of the Eighth Amendment.”

Five years after Furman, Amnesty International took up the call to campaign for an end to the death penalty throughout the world.

Today, almost 100 countries have abolished the death penalty, and two-thirds of the world’s nations have abandoned capital punishment in law or practice.

There is a growing global consensus that the death penalty is, indeed, “offensive to human dignity.”

Even in the U.S., the public is turning away from the death penalty, as death sentences have dropped precipitously in the last 12 years …

Douglas: “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.”

Today, death sentences are determined, not by the nature of the crime, but by the ability of the defendant to afford a good lawyer, and by where the crime is committed.

Stewart: “These death sentences are cruel and

unusual in the same way that being struck by

lightning is cruel and unusual.”

White: “a major goal of the criminal law – to deter others by punishing the convicted

criminal – would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others… its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Even murder victim family members are increasingly saying they don’t need it …

Today, 88% of criminologists agree that there is no evidence that the death penalty deters more than other punishments …

What about the 4 dissenters? They said the death penalty was not cruel and unusual, and that the court should not intervene in the states and the legislative branch.

Blackmun: “Although 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.” 

Powell: “Less measurable, but certainly of no less significance, is the shattering effect this collection of views has on the root principles of stare decisis, federalism, judicial restraint, and -- most importantly -- separation of powers.”  

Rehnquist: “Whatever its precise rationale, today's holding necessarily brings into sharp relief the fundamental question of the role of judicial review in a democratic society. How can government by the elected representatives of the people co-exist with the power of the federal judiciary, whose members are constitutionally insulated from responsiveness to the popular will, to declare invalid laws duly enacted by the popular branches of government?”

All 3 of these voted for reinstatement in 1976, but Powell and Blackmun later recanted:

“I would vote the other way in any capital case. … I have come to think that capital punishment should be abolished.” –Supreme Court Justice Lewis Powell, to his biographer in 1991.

“From this day forward, I no longer shall tinker with the machinery of death … the basic question – does the system accurately and consistently determine which defendants ‘deserve’ to die? – cannot be answered in the affirmative.” – Supreme Court Justice Harry Blackmun, in a dissent in Callins v. Collins (1994)

Even Chief Justice Burger, expressed his personal objection to the death penalty, and the need to limit it to the worst cases.

“If we were possessed of legislative power, I would either join with MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL or, at the very least, restrict the use of capital punishment to a small category of the most heinous crimes.”

But he also provided a roadmap for States to avoid randomness and make their new death penalty laws constitutional by limiting the death penalty to only the worst crimes.

Burger: “If state legislatures and the Congress wish to maintain the availability of capital punishment … legislative bodies may seek to bring their laws into compliance with the Court's ruling by providing standards for juries and judges to follow in determining the sentence in capital cases or by more narrowly defining the crimes for which the penalty is to be imposed.”

As we have seen, this did not work …death sentences are still determined more by race and location …

Today’s death penalty, designed to be limited to the “worst of the worst”, has also instead ensnared the innocent. 140 people have been exonerated from death row since Furman.

Many more have been executed despite serious doubts about their guilt.

What happened to those whose death sentences were commuted by the Furman decision?

A total of 589 death sentences were commuted following Furman. Joan Cheever’s book “Back from the Dead” follows the 322 inmates who were released from prison after Furman.

Of the 322 released:211 never committed another crime, and 7 were exonerated by courts post-release33 were re-incarcerated for a small number of days for “technical violations” of their parole.42 were re-incarcerated for non-violent crimes,29 for more violent felonies2 of the parolees were convicted of attempted murder2 for manslaughter 3 for murder.

In 1972, 40 states + Washington, DC, had the death penalty…

Now, just 33 states have the death penalty (DC does not)

In 1972, 49% of the public supported the death penalty

Now, 61% of the public supports the death penalty (but only 49% if the alternative of life without parole is suggested)

As in 1972, the death penalty today is still “wanton and freakish”, “pregnant with discrimination,” and a “pointless and needless extinction of human life” that is “fatally offensive to human dignity”.

And, as in 1972, support for abolition of the death penalty is growing. Four Governors have signed death penalty abolition bills since December 2007.

Your State could be next!

We lived without the death penalty for four years after Furman. What will it be like when we abolish the death penalty again?Resources will be devoted to more effective and more human polices:Prevention policy: violence, drug/alcohol abuse, treatment for the mentally illPublic Safety: resources for community policing and other social services

WHAT CAN YOU DO?

EDUCATE THE PUBLIC Leaflet, table, set up a display,

organize a panel discussion, host a speaker, present to a class/civic/religious group, wear abolition button/shirt, etc.

WRITE/ORGANIZE ON AI DEATH PENALTY CASES

WORK ON DEATH PENALTY ABOLITION IN YOUR STATE

www.amnestyusa.org/abolish DPIntern2@aiusa.org

202-544-0200

JOIN US TODAY!

a memberJoin a local or student groupBecome an on-line activistBecome a volunteer leader

1-800-AMNESTYwww.amnestyusa.org

Your Regional Office: 1-866-A REGION

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