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The American public has consistently favored the use of the death penalty. Although anti-capital-punishment groups in the 19th century won some victories in slowing down the drive for death-penalty laws, most of their successes were short-lived. By the early 20th century, executions were common and widespread, reaching record numbers by the 1930s and 1940s, when more than 100 people were executed each year. But as public and official confidence in the effectiveness and fairness of capital punishment began to wane in the 1960s, the number of yearly executions dropped to the single digits. By the early 1970s, there was an unofficial end to executions in the country.
Opponents of the death punishment lauded the Supreme Court decision in the 1972 ruling that a jury's unregulated option to impose the death penalty led toward a "wanton and freakish pattern of its use" that was cruel and unusual. However, the anti-death penalty lobby was not the outright winners because the court failed to call the death penalty unconstitutional. Just a few years later, capital punishment was back with full force in the United States.
Furman, a black, killed a householder while seeking to enter the home at night. Furman shot the deceased through a closed door. He was 26 years old and had finished the sixth grade in school. Pending trial, he was committed to the Georgia Central State Hospital for a psychiatric examination on his plea of insanity tendered by court appointed counsel. The superintendent reported that a unanimous staff diagnostic conference had concluded "that this patient should retain his present diagnosis of Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder." The physicians agreed that "at present the patient is not psychotic, but he is not capable of cooperating with his counsel in the preparation of his defense"; and the staff believed "that he is in need of further psychiatric hospitalization and treatment."
Later, the superintendent reported that the staff diagnosis was Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder.
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The victim surprised Furman in the act of burglarizing the victim's home in the middle of the night. While escaping, Furman killed the victim with one pistol shot fired through the closed kitchen door from the outside. At the trial, Furman gave his version of the killing:
"They got me charged with murder and I admit, I admit going to these folks' home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn't intend to kill nobody. I didn't know they was behind the door. The gun went off and I didn't know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That's all to it."
The Georgia Supreme Court accepted that version. "The admission in open court by the accused that during the period in which he was involved in the commission of a criminal act at the home of the deceased, he accidentally tripped over a wire in leaving the premises causing the gun to go off, together with other facts and circumstances surrounding the death of the deceased by violent means, was sufficient to support the verdict of guilty of murder."
One of the most interesting parts of the case is that the jury knew only that Furman was black and that, according to his statement at trial, he was 26 years old and worked as an upholsterer. It took the jury one hour and 35 minutes to return a verdict of guilt and a sentence of death. In essence, then, the Furman case as decided by the jury in Georgia was based on racial bias and bigotry.
The hot issues of the late sixties were civil rights/liberties topics such as racial equality, gender equality, affirmative action, the death penalty, and abortion. Most court decisions were associated with the powerful political and legal developments in American society. The term "social issues" embodies the deep divisions in American society over such issues as abortion, affirmative action, crime and punishment, drug use, sexual mores, and attitudes toward God and country. Several factors in American society have turned these issues into prominent political concerns that have affected both the role of the Court in American society and the substance of its decisions. An important source of this tension was seen to be associated with profound educational and technological developments in a post-industrial American society. Combined with the massive social movements of the sixties involving poverty, racism, and Vietnam, these educational and technological developments produced a middle-class and upper-middle class intelligentsia with liberal cultural values in sharp contrast to those of a new working class which had gained new wealth but adhered to the more traditional values of American society. These divisions have been a major part of electoral politics since 1968. There was strong support for the death penalty but racism was a topic that the new liberal class was against wholeheartedly. The injustices that were quite evident during Furman's initial trial were not hidden from the public and there was intense pressure to recant a decision that was based on race and not on justice. Even the working conservative class had to some extent been won over to he anti-racism agenda. Those were heady days and anything resembling prejudice was apt to be thrown out the window. The question is why the initial decision went against Furman when the evidence against him was so flimsy. According to Robert McKeever: "In the debate over traditional versus progressive attitudes toward crime and punishment, the traditionalists have won out on the Court just as surely as they have elsewhere in the American political system."
America may have become a land of liberals but the American South was still a conservative heartland. The idea that racial prejudice did not exist in Georgia was refuted by statistical and anecdotal evidence. The political mentality of lynching had been deeply ingrained in the American South. That is one of the reasons that Furman was first convicted.
Georgia has a long history of racist violence against its ethnic minorities. Between 1880 and 1930, 3,220 blacks were lynched by mobs in the southern states of the USA, 460 of them in Georgia; this compares with 723 whites during the same period (49 of them in Georgia). The lynching of blacks - without any investigation of the alleged crime - was socially acceptable in Georgia. In 1897, Rebecca Felton - a journalist for the Atlanta Constitution - when addressing the State Agricultural Society of Georgia stated: If it takes lynching to protect women's dearest possession [a reference to the fear of the rape of white women by black men], then I say lynch a thousand a week if it becomes necessary." The best citizens of the community often led Lynch mobs. The mob that lynched a black man in Macon, Georgia, in 1922 followed the lead of the manager of a local hotel, the president of an insurance company and a local merchant.
To combat such attitudes, liberal organizations were formed that lifted their voices for everything from freedom of privacy to aliens' and immigrants' rights. One such organization that played an important part in bringing the Furman case to the Supreme Court was the ACLU (American Civil Liberties Union). ACLU is a non-profit-making litigation and lobbying organization founded in 1920. Originally established to defend conscientious objectors during World War I, the organization later expanded its activities to include defending "freedom of expression, privacy, due process, and equal protection—in a non-partisan fashion on behalf of anyone, irrespective of how unpopular the cause." The ACLU is one of the most powerful minority rights organization. They offer alternatives and solutions to the utilization of capital punishment. Haines writes: "the organization has advocated alternatives to non-violent offenders; the decriminalization of drugs and greater resources for drug treatment and rehabilitation; community policing; more adequate victim services, including compensation, counseling, and the right to be kept informed about the prosecution of offenders, and the incapacitation of dangerous offenders through very long prison sentences as an alternative to the death penalty". The politically charged climate of the late sixties was perfect for the ACLU to launch its attack against the Furman case and become instrumental in approaching the Supreme Court.
Another prolific anti-death group to come out of the sixties was Amnesty International. They are absolutely against any form of capital punishment. It is a human rights organization that fights for the rights of oppressed people all over the world, including those on Death Row. It was established in 1961 to fight for the release of people imprisoned for their political beliefs. It was the political clout of these organizations that was largely responsible for bringing the Furman issue to the Supreme Court and having the decision reversed.
Conservatives ran the southern courts and the issues of racial integration hadn't had much effect on those who ran the legal system. Throughout American history most capital crimes have been tried and punished within state jurisdictions rather than at the federal level. This changed in the politically charged atmosphere of the sixties. From the early sixties to the early seventies, there were quite a few federal reviews of state court decisions.
This was a watershed period in the history of capital punishment in the United States. The U.S. Supreme Court ruled in Robinson v. California (1962) that the Eighth Amendment was "incorporated," meaning it applied to states. This opened the way for a significant expansion in the role of federal appeals courts in examining state capital sentencing. The practical effects of the Robinson decision were profound. First, more prisoners began contesting their death sentences in federal appellate courts, leading to a decline in executions. Only seven prisoners were executed in 1965 and only two in 1967. This was followed by an unofficial capital punishment moratorium among the states while the federal courts examined the constitutionality of various state death penalty statutes. Today the typical death row prisoner spends 10 years awaiting execution or other final disposition of the case.
In 1972 the U.S. Supreme Court, in Furman v. Georgia, shook the foundations of the criminal justice system when it ruled that the death penalty, as administered, violated the Eighth Amendment's prohibition on cruel and unusual punishment. This landmark case involved three different cases with black defendants. One of these defendants, William Furman, had been convicted of murder and the other two had been convicted of rape. A majority of the court said that juries were given too much unguided discretion in sentencing, causing the death penalty to be meted out in "arbitrary and capricious" ways. The decision effectively voided death penalty laws in 32 states and removed 629 prisoners from death rows. Every single case in the country prescribing the death penalty was thrown out.
All nine justices tried to define what constitutes "cruel and unusual" in separate opinions, but they could not come up with a clear consensus. Two justices said the death penalty was unconstitutional under any condition, three said capital punishment was unconstitutional as currently administered, and four dissenting justices said that the Constitution clearly authorizes the death penalty. Because of the lack of harmony among the justices' opinions, states were left with no clear standard with which to work.
In the handling of the case, Mr. Justice Douglas, Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, And Mr. Justice Marshall filed separate opinions in support of the judgments. The Chief Justice Burger, Mr. Justice Blackmun, Mr. Justice Powell, And Mr. Justice Rehnquist filed separate dissenting opinions. Thus the case was decided with a narrow margin of five to four.
The decision of the case was based on the Eighth and Fourteenth Amendments of the Constitution.
The Eighth Amendment to the United States Constitution: Provides that, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Elucidating the point of view of the concurring judges, Justice Douglas explained the meaning of the phrase "cruel and unusual punishment" in the Eighth Amendment:
"The words 'cruel and unusual' certainly include penalties that are barbaric. But the words, at least when read in light of the English proscription against selective and irregular use of penalties, suggest that it is 'cruel and unusual' to apply the death penalty -- or any other penalty -- selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board."
This explanation was clear enough in that the Furman case was based more on race grounds than on legal grounds. The four dissenting Justices, however, refused to see the case in this light. They had their own explanation of the Eighth Amendment:
"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. Wilkerson v. Utah, 99 U.S. 130 (1879); Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464. In re Kemmler, 136 U.S. 436 (1890) (dictum). The Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment."
The justices handled the case well on an individual basis but the collective handling of the case left much to be desired. The justices did not reach a consensus on this most sensitive of issues, neither did they state that the death penalty was unconstitutional. They merely stated that it was cruel under its present format. This was not much of a hindrance to the states because they promptly made amendments in their death penalty clauses to accommodate the Furman decision.
No one could think that courts are infallible on points of law, or believe that there are not many questions of law-including many life-and-death questions-the answer to which, even if a "correct" answer exists, is exceedingly elusive and hard to be sure of. Supreme Court Justices are the highest judicial beings in the country, and if there are cases decided by only one vote, even their judgement should be called into question. They cannot be absolutely positive about a ruling every time, it just is not possible. They are human and can make mistakes just like the rest of us. The narrow margin of one vote was enough to put doubts in the minds of many people.
The political consequences of the Furman case were grave for anti capital punishment groups. The individual states simply went back to their legislatures and framed new laws that could support the decision made by the Justices in the Furman case. Consequently, only four years later, the Supreme Court found that the amended laws of Georgia were now compliant with the Eighth Amendment. This happened in another landmark case of the seventies. In Gregg v. Georgia, the convict Gregg appealed to the Supreme Court against his conviction and death penalty. The Court first held that "the punishment of death does not invariably violate the Constitution." The Court went on to find that while some discretion still exists in the Georgia sentencing procedures, "the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application." Accordingly, it held that Georgia's new statutory sentencing system did not violate the Constitution.
Since then, the death penalty has again become a common practice in the United States. A recent study showed that between 1993 and 1997, the courts exonerated 21 death row prisoners. Previous reports showed that, on average, 2.5 innocent defendants were released annually from death row between 1973 and 1993. David Rovella gave the following statistics in The National Law Journal: "This report comes on the 25th anniversary of Furman v. Georgia, 408 U.S. 238 (1972), which outlawed existing death penalty laws while setting the stage for Gregg v. Georgia, 428 U.S. 153 (1976), which approved modern-day death penalty statutes. Currently, 38 states and the federal government have active death penalties. Since 1973, 6,000 people have been sentenced to death, and 402 have been executed."
The journal Focus had this view on the Furman v. Georgia case: "Twenty-five years ago, the U.S. Supreme Court -- in the case of Furman v. Georgia (1972) -- temporarily curbed the death penalty, because its application was arbitrary and capricious ('wantonly and so freakishly imposed,' to quote Justice Potter Stewart in a concurring opinion). Is the use of the death penalty today more consistent and less arbitrary?"
The death penalty in Georgia and the United States continues to be used in a manner that is racist, arbitrary and unfair. Research has shown that in many cases the ethnic origin of the victim or defendant was a key factor in the prosecutors' decision to seek the death penalty. Many of those sentenced to death in the state received poor legal representation. The racist use of the death penalty continues despite the 1972 US Supreme Court ruling in Furman v. Georgia that the arbitrary and capricious use of the death penalty was unconstitutional under the Eighth and Fourteenth Amendments. It is said that Furman v. Georgia was a landmark decision but in essence it changed nothing. It proved to be a mere problem in the long running practice of the death penalty.
1. Amnesty International Country Report: The death penalty in Georgia: racist, arbitrary and unfair. 1996.
2. Brundage, Fitzhugh. "Lynching in the New South."
3. Castberg, Didrick and Victor Rosenblum. Cases on Constitutional Law. Illinois: The Dorsey Press, 1973.
4. Focus Spring 1997. Volume XII, Number 2
5. Furman V. Georgia 408 U.S. 238 (1972) U. S. Supreme Court. Decided June 29, 1972
6. Gregg v. Georgia 428 U.S. 153 (1976) U.S. Supreme Court
7. Haines, Herbert. Against Capital Punishment. New York: Oxford University Press. 1996.
8. Kronenwetter, Michael. Capital Punishment:A Reference Handbook. Santa Barbara: ABC-CLIO. 1993.
9. McKeever, Robert J. Raw Judicial Power? The Supreme Court And American Society. Second Edition. Manchester, England: Manchester University Press, 1995.
10. Rovella, David E. "Danger of Executing the Innocent on the Rise: Four-year study shows that more innocent people are being sent to death row." The National Law Journal (p. A01) Monday, August 4, 1997.