Furman v. Georgia
The Supreme Court struck down the death sentences of three men, ruling that capital punishment as actually carried out under Georgia and Texas law amounted to cruel and unusual punishment because it was imposed so rarely and unpredictably that it looked more like a lottery than a considered judgment.
The 5-4 decision effectively voided every death penalty statute in the country at the time, but the five justices in the majority could not agree on a single reason why, so the ruling stopped short of declaring capital punishment always unconstitutional.
How it got here: Georgia's Supreme Court and the Texas Court of Criminal Appeals affirmed the convictions and death sentences; the Supreme Court agreed to hear the cases limited to the cruel-and-unusual-punishment question.
The Case in Depth
What happened
Three men were sentenced to death by juries with unguided discretion: William Furman, convicted of murder after fatally shooting a homeowner during a burglary in Georgia; Lucious Jackson, convicted of rape committed during a robbery in Georgia; and Elmer Branch, convicted of rape in Texas. Each state's law let the jury choose freely between death and a lesser sentence.
The question before the Court
Could Georgia and Texas keep sentencing people to death under laws that let juries choose between death and prison with no guidance at all?
The Court's answer
No -- the Supreme Court held that the death sentences imposed on these three men violated the Eighth and Fourteenth Amendments' ban on cruel and unusual punishment. Five justices agreed to strike down the sentences, but for different reasons: some focused on how arbitrarily and rarely death was actually being imposed, one on how race and poverty shaped who was chosen to die, and two concluded the death penalty itself could never be constitutional.
Because no single rationale commanded a majority, the ruling did not flatly abolish capital punishment for all time. It did, however, invalidate the death penalty statutes then in effect in most states, emptying death rows until legislatures rewrote their sentencing laws.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling emptied death rows nationwide and forced every state with a death penalty to rewrite its sentencing laws before executions could resume. It pushed lawmakers to add specific standards guiding when death could be imposed, reshaping how capital cases are tried and sentenced across the country to this day.
What changes now
The cases were sent back for further proceedings, and the ruling effectively voided the death penalty statutes of most states then in force, commuting hundreds of pending death sentences. States and Congress quickly began rewriting capital sentencing laws to add specific guidance for juries and judges. The Supreme Court later upheld some of these revised statutes in 1976, so this decision did not end capital punishment permanently.
What this does not decide
Only two justices, Brennan and Marshall, concluded that the death penalty itself is always unconstitutional. The other three justices in the majority objected only to how arbitrarily and rarely it was being imposed under these particular laws, leaving open the possibility that a more carefully designed death penalty statute could survive constitutional review.
Concurrences and dissents
Concurrence — Justice Douglas
Justice Douglas argued that the basic theme of equal protection is implicit in the Eighth Amendment, and that discretionary death sentencing let race, poverty, and social status determine who was chosen to die. He concluded these statutes were unconstitutional because they were applied in a discriminatory, caste-like manner against the poor and unpopular.
Concurrence — Justice Brennan
Justice Brennan proposed four principles for judging whether a punishment is cruel and unusual: whether it is degrading in its severity, whether it is arbitrarily inflicted, whether contemporary society has rejected it, and whether it serves any purpose a lesser punishment could not. He concluded the death penalty as practiced failed all four and was therefore unconstitutional outright.
Concurrence — Justice Stewart
“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”Stewart's explanation for why the rare, seemingly random imposition of death violated the Eighth Amendment.
Justice Stewart declined to decide whether capital punishment is always unconstitutional. He concluded only that these particular death sentences were so wantonly and freakishly imposed -- comparable to being struck by lightning -- that they violated the Eighth and Fourteenth Amendments.
Concurrence — Justice White
Justice White concluded that the death penalty was being imposed so infrequently under these statutes that it no longer served any real deterrent or retributive purpose. Without that penological value, he found the punishment excessive and therefore cruel and unusual as administered.
Concurrence — Justice Marshall
Justice Marshall traced the history of capital punishment at length and concluded it was excessive, discriminatorily applied, and morally unacceptable to an informed public. He would have held the death penalty unconstitutional in all circumstances, not just as applied in these cases.
Dissent — Justice Burger
Chief Justice Burger argued that history, the Constitution's text, and a century of precedent all confirmed the death penalty's constitutionality. He viewed the majority's ruling as an act of judicial will rather than legal reasoning and would have left reform of capital sentencing to state and federal legislatures.
Dissent — Justice Blackmun
Justice Blackmun wrote separately to say that although he personally found the death penalty morally repugnant and would vote to abolish it as a legislator, he believed the Court had no constitutional basis to do so as judges, calling the decision an act of will rather than of law.
Dissent — Justice Powell
Justice Powell argued the Constitution's text and an unbroken line of precedent affirmed that capital punishment was permissible, criticized the majority for failing to agree on any unifying rationale, and warned that the ruling improperly stripped state and federal legislatures of their historic authority to set criminal punishments.
Dissent — Justice Rehnquist
Justice Rehnquist emphasized judicial restraint and the separation of powers, arguing the majority substituted its own policy preferences about capital punishment for the considered judgments of elected legislatures without any solid constitutional footing for doing so.
How the Court got there
The legal reasoning, step by step
- Each justice in the majority applied some version of the idea that the Eighth Amendment's ban on cruel and unusual punishment must be read according to evolving standards of decency, not frozen to what was acceptable in 1791.
- Justices Stewart and White concluded that death sentences were handed out so rarely compared to how often the law allowed them that the process amounted to an arbitrary, almost random selection rather than a reasoned sorting of the worst offenders.
- Justice Douglas reasoned that giving judges and juries unguided discretion let race, poverty, and social status influence who was chosen to die, smuggling unconstitutional discrimination into a facially neutral law.
- Justice Brennan applied four principles for judging cruel and unusual punishment -- severity, arbitrariness, rejection by society, and lack of necessity -- and found the death penalty, as practiced, failed all four.
- Justice Marshall reviewed the history and practice of capital punishment at length and concluded it served no purpose that long-term imprisonment could not serve equally well, making it excessive and unnecessary.
- Because five justices agreed the sentencing systems before them could not stand, even though they disagreed on the underlying rationale, the Court held the sentences unconstitutional and reversed without adopting one controlling legal test.