Constitution Daily

Smart conversation from the National Constitution Center

On this day, Supreme Court temporarily finds death penalty unconstitutional

June 29, 2019 by Scott Bomboy


On June 29, 1972, the Court decided in a complicated ruling, Furman v. Georgia, that the application of the death penalty in three cases was unconstitutional. The Court would clarify that ruling in a later case in 1976, putting the death penalty back on the books under different circumstances.

The debate over whether the death penalty constitutes cruel and unusual punishment dates back to the Founding Fathers. The Constitution’s Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

In 1789, during the debate over the Bill of Rights in the First Congress, one argument was over the extent of the death penalty. Samuel Livermore of New Hampshire proposed that “it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off.”

“But are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind,” Livermore said.

The First Congress adopted a more moderate view when it proposed the Eighth Amendment for ratification in the Bill of Rights. It was also concerned about the use of harsh punishments in an arbitrary and disproportionate way.

The Supreme Court initially considered these factors as they would have applied in the Founders’ time. In 1878, the Court ruled in Wilkerson v. Utah that death by firing squad was permissible, but it agreed that old English practices of execution where prisoners were “emboweled alive, beheaded, and quartered,” publicly dissected and burned alive were unconstitutional.

Then in 1910, the Court broadened its criteria in Weems v. United States, which wasn’t a capital punishment case but still dealt with cruel and unusual punishment. The Justices referenced an earlier death-sentence case, In re Kemmler from 1890, which held that the first use of the electric chair was constitutional under the 8th and 14th Amendments. Later, the Court ruled that it was permissible to execute a person with the electric chair, for a second time, after a first attempt failed.

However, in 1972 the Court changed direction in Furman v. Georgia, when, in a very complicated ruling, a split 5-4 Court decided the death penalty application was unconstitutional in three cases.

Furman, an armed burglar, had tripped while fleeing a scene, causing his gun to discharge and kill a victim. The Court also considered two similar cases in the Furman decision. The Court filed a one-paragraph per curiam ruling and each of the nine Justices wrote their own separate opinions.

“The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings,” the brief opinion read.

Only two of the Justices believed the death penalty was unconstitutional under all circumstances. But the effect of the Furman decision was to place a four-year moratorium on all executions until more guidance came from a court challenge.

In 1976, in a series of decisions called the Gregg cases, the Court confirmed that capital punishment was legal in the United States, but under limited circumstances. It rejected automatic sentencing to death, and said death sentences can’t be characterized by “arbitrariness and capriciousness.” The ruling led to the use by states of aggravating and mitigating circumstances in determining capital sentencing.

In later years, the Court has excluded certain classes of people from capital punishment, including the mentally handicapped and juveniles. It also eliminated rape and felony murder as capital crimes.


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