1972.
Three cases reached the court, those of Lucious Jackson Jr., a twenty-one-year-old black man who raped a white woman, holding scissors against her neck, after escaping from prison; Elmer Branch, a black man of “dull normal intelligence” who raped a sixty-five-year-old white widow in Texas; and William Henry Furman, a twenty-six-year-old black man who murdered a father of five during a botched burglary. Furman had a history of mental problems and was deemed by a state psychiatrist to be mentally incapable of assisting in his own defense; his trial had lasted one day.
The question before the court was limited: Is the imposition and carrying out of the death penalty in these cases cruel and unusual punishment in violation of the Eighth Amendment to the Constitution? The amendment was adopted verbatim by the Founding Fathers from the English Bill of Rights, and it is only sixteen words long: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The court had rarely had to consider the clause, and when it did, the issue focused on the method of execution. In 1878, in
Wilkerson v. Utah
, the court upheld execution by firing squad. Twelve years later, in
In re Kemmler
, it upheld the electric chair. One of the more notorious cases to reach the court involved efforts by Louisiana to execute sixteen-year-old Willie Francis for murder. There was no physical evidence linking him to the crime, but he allegedly confessed. On the day set for his execution, he was strapped into the electric chair. The first jolt didn’t kill him. The executioner upped the voltage; that also failed to kill him. He was led back to his cell. Appeals followed. The court upheld the right of the state to try again. While what the state was doing was “hardly defensible,” Justice Felix Frankfurter wrote, “It is not so offensive to make one puke—it does not shock my conscience.” Though he was “strongly against capital punishment,” he said that it was a matter for state legislatures, not the Supreme Court.
Those three cases largely represented the state of the law when
Furman v. Georgia
reached the court in 1971. In
Furman
, the issue wasn’t the method of execution, but execution per se—was it proscribed by the Eighth Amendment? By a vote of 5–4, the court overturned the sentences.
But the decision was far more complex than it appeared. For starters, the court announced its decision in a very short, unsigned per curiam opinion, something extremely rare. It reflected that the justices were as divided and uncertain on capital punishment as was the general public. Each of the justices wrote a separate opinion, the total coming to more than two hundred pages, one of the longest documents ever produced by the Supreme Court.
Only Justices Thurgood Marshall and William J. Brennan Jr. declared categorically that the death penalty was unconstitutional. “The criminal acts with which we are confronted are ugly, vicious, reprehensible acts,” Marshall began his eighty-five-page opinion. “Their sheer brutality cannot and should not be minimized.” But the court was not being asked to condone the crimes, Marshall went on; it was only being asked whether the death penalty in each case violated the Eighth Amendment. He then traced the history of capital punishment, noting the decline in the number of crimes for which it was considered appropriate and in its implementation. He concluded that it wasn’t a deterrent, and that it was more costly to execute a man than to keep him in prison for life. Finally, he declared, putting a man to death for a crime “is morally unacceptable to the people of the United States at this time in their history.”
For Brennan, a punishment was cruel and unusual “if it does not comport with human dignity.” And putting someone to death, he wrote, was “fatally offensive to human dignity.” The words “human dignity” appear nowhere in the
Three cases reached the court, those of Lucious Jackson Jr., a twenty-one-year-old black man who raped a white woman, holding scissors against her neck, after escaping from prison; Elmer Branch, a black man of “dull normal intelligence” who raped a sixty-five-year-old white widow in Texas; and William Henry Furman, a twenty-six-year-old black man who murdered a father of five during a botched burglary. Furman had a history of mental problems and was deemed by a state psychiatrist to be mentally incapable of assisting in his own defense; his trial had lasted one day.
The question before the court was limited: Is the imposition and carrying out of the death penalty in these cases cruel and unusual punishment in violation of the Eighth Amendment to the Constitution? The amendment was adopted verbatim by the Founding Fathers from the English Bill of Rights, and it is only sixteen words long: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The court had rarely had to consider the clause, and when it did, the issue focused on the method of execution. In 1878, in
Wilkerson v. Utah
, the court upheld execution by firing squad. Twelve years later, in
In re Kemmler
, it upheld the electric chair. One of the more notorious cases to reach the court involved efforts by Louisiana to execute sixteen-year-old Willie Francis for murder. There was no physical evidence linking him to the crime, but he allegedly confessed. On the day set for his execution, he was strapped into the electric chair. The first jolt didn’t kill him. The executioner upped the voltage; that also failed to kill him. He was led back to his cell. Appeals followed. The court upheld the right of the state to try again. While what the state was doing was “hardly defensible,” Justice Felix Frankfurter wrote, “It is not so offensive to make one puke—it does not shock my conscience.” Though he was “strongly against capital punishment,” he said that it was a matter for state legislatures, not the Supreme Court.
Those three cases largely represented the state of the law when
Furman v. Georgia
reached the court in 1971. In
Furman
, the issue wasn’t the method of execution, but execution per se—was it proscribed by the Eighth Amendment? By a vote of 5–4, the court overturned the sentences.
But the decision was far more complex than it appeared. For starters, the court announced its decision in a very short, unsigned per curiam opinion, something extremely rare. It reflected that the justices were as divided and uncertain on capital punishment as was the general public. Each of the justices wrote a separate opinion, the total coming to more than two hundred pages, one of the longest documents ever produced by the Supreme Court.
Only Justices Thurgood Marshall and William J. Brennan Jr. declared categorically that the death penalty was unconstitutional. “The criminal acts with which we are confronted are ugly, vicious, reprehensible acts,” Marshall began his eighty-five-page opinion. “Their sheer brutality cannot and should not be minimized.” But the court was not being asked to condone the crimes, Marshall went on; it was only being asked whether the death penalty in each case violated the Eighth Amendment. He then traced the history of capital punishment, noting the decline in the number of crimes for which it was considered appropriate and in its implementation. He concluded that it wasn’t a deterrent, and that it was more costly to execute a man than to keep him in prison for life. Finally, he declared, putting a man to death for a crime “is morally unacceptable to the people of the United States at this time in their history.”
For Brennan, a punishment was cruel and unusual “if it does not comport with human dignity.” And putting someone to death, he wrote, was “fatally offensive to human dignity.” The words “human dignity” appear nowhere in the
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