Forty Years after Furman: Still "Fastened to the Obsolete"

We celebrate this day 40 years ago, when the Supreme Court, in Furman v. Georgia, declared the death penalty unconstitutional.

The Court divided in 1972 as it had never done before. Nine Justices wrote nine separate opinions, with a majority of five agreeing that the death penalty was arbitrary – “freakishly” imposed on some convicted persons while others, equally as guilty, were allowed to live. Random severity is not equal justice, they said: this offends the Eight Amendment ban on cruel and unusual punishment. Worse, they found, “if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race.”

Thurgood Marshall, the Court’s first African-American and the grandson of slaves, wrote the lengthiest opinion, an historical and jurisprudential tour-de-force, backed with tables, graphs and citations to studies. He demonstrated that imposition of the death penalty in the United States was random, inconsistent, and a product of discrimination. Marshall’s opinion laid the framework for the debate about the death penalty for the next 40 years. The death penalty costs more; no one can show it has deterrence value; poor people accused of crime get inexperienced or bad lawyers; Black people are more likely than their white counterparts to be sentenced to death for the same offenses; and even the innocent are not safe from wrongful testimony or human error. Further, he believed with his predecessor Justice Felix Frankfurter that capital trials “sensationalize” and degrade our entire system of justice.

All nine Justices looked at the history of the Eighth Amendment’s prohibition against cruel and unusual punishment, written at a time when no one thought there was much wrong with the death penalty for murder, rape, treason, and even some property crimes. But in 1789, when the Eighth Amendment was debated in the First Congress, not only was the death penalty accepted but so were whippings, brandings, and ear croppings. No member of the Furman Court seriously argued that the standard of humane punishment should remain the same, should not evolve as the country matured. In 1910 the Court had said that the understanding of what the Eighth Amendment forbids “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” What the justices did debate was whether that moral evolution had yet reached a place where capital punishment was incompatible with the Eighth Amendment, whether the “basic mores of society “ had changed enough to render it so. And they disagreed about the role of the courts and that of the state legislators.

There was surprisingly little difference between the Justices in their views of the death penalty itself, despite their differing legal opinions about the Eighth Amendment. In fact, the conservative bloc in Furman would be considered liberal on the death penalty on today’s Court. Justice Blackmun, a dissenter who voted against finding capital punishment unconstitutional, wrote that he yielded to no one “in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty” which he said “serves no useful purpose that can be demonstrated.” But neither he nor the other dissenting justices thought that the death penalty had reached a place of nearly universal condemnation, that it did not yet offend “the conscience of contemporary society,” was not as yet “unanimously repudiated.” The majority believed otherwise, finding that the Court’s collective distaste for the death penalty reflected the conscience of most Americans.

Forty years ago, many people who celebrated this day thought that the era of capital punishment in the United States had come to an end. Would that it were so. Instead it turned out to be a temporary reprieve: four short years later, in Gregg v. Georgia, the Court allowed capital trials to resume. And where has that gotten us? The imposition of the death penalty is still arbitrary, still targets the poor and people of color, still condemns the innocent. The mentally ill are still at risk (William Henry Furman was African-American, mentally retarded, and psychotic, with some sort of seizure disorder; he was so mentally ill he was initially judged incompetent to stand trial, as he was incapable of cooperating with his lawyer.) The death penalty still costs more than a sentence of life in prison, and will always be irrevocable.

Recent repeals of capital punishment – five states in five years – are among the reasons to believe that the country is catching up to most of the rest of the world in its “moral repugnance” for this barbaric penalty. But our courts seem far from the “humane justice” that might help enlighten us. For now, and for as long as we have the death penalty, the U.S. remains “fastened to the obsolete.”

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