FURMAN V, GEORGIA: LAST RITES FOR THE DEATH PENALTY?
GROVER HARTT, III
FURMAN V. GEORGIA:
LAST RIGHTS FOR THE DEATH PENALTY?
On June 29, 1972, the Supreme Court held the death
penalty unconstitutional as a violation of the proscription
·. of cruel and unusual punishments in the eighth amendment.
1
Significantly, the laconic per curiam opinion only held
unconstitutional the three statutes before the court
2
and
refrained from holding the death penalty unconstitutional
per se.
Almost immediately intense debate developed con-
cerning whether new statutes imposing capital punishment
would be constitutional.
Five states have since approved
legislation which purports to reinstate the death penalty,
six~h
and a
.
tat ·~on
may have done so by means of judicial interpre-
0 f an
..
ex~st~ng
statute. 3
The unanswered question, and the question which this
paper will attempt to answer, is whether such efforts are
constitutional.
sary to
specul~te
To arrive at a conclusion it will be neceson what will satisfy the Furman Court.
Before analyzing Furman, however , it is essential to consider
. the two concepts which constituted its milieu:
unusual punishment and discretionary sentencing.
Cruel and
After that,
attention can be given to the Furman decision itself.
Then
the implications of Furman upon attempts to reinstate capital
punishment can be assessed •
. THE LAW PRIOR TO FURMAN
The specific provision of the, constitution which was
offended by the imposition of the death penalty in these
cases was the prohibition against cruel and unusual punishments.
4
Analysis of this concept is therefore important to
examination of legislation subsequent to Furman.
Although
the methods of execution presently used in the United States
had been assailed as cruel, the Supreme court had never held
them to be within the ambit of the eighth amendment.
5
It is
noteworthy, however, that immediately prior to Furman the
California ,supreme court held that capital punishment violated
the cruel or unusual punishment provision of that state's constitution.
6
Before Furman the Supreme Court had considered cruel
'and unusual punishment on only a few occasions.
Usually it
had refused to invalidate a punishment as unduly severe so
long as it was ,within statutory requirements.
7
This result
obtained even when the sentence of a particular offender was
far in excess of those given similar offenders.
8
It had also
: ,0
been held that the eighth amendment did not apply to the
.
.
states.
9
-2-
One of the first instances of voiding a punishment by
means of the ,e ighth amendment was Weems v. United States.
10
In that case the defendant was convicted of falsifying an
,entry in a government cashbook.
Under Philippine law the
defendant was, sentenced to cadena , temporal:
Twelve years
, of hard and painful labor with "accessories".
Accessories
included chains on the ankles and wrists, perpetual loss
of all civil' rights, and subjection to surveillance during
life.
Some years later denationalization of a military
deserter was held cruel and unusual in Trop v. Dulles. 11
Thereafter, the court in Robinson v. California also refused
,to allow a state to make narcotics addiction a crime.
12
Such a stat;ute was unconstitutional under the eighth amendment because it ' made "mere status" a crime.
Robinson was
further significant in that it specifically held the eighth
' amendment ap,J;>licable 'to the states via the fourteenth amendment.
In spite of the fa,c t that until Furman the Court had
never addressed, the ' question of whether the death penalty
was a cruel and unusual punishment, the issue was not entirely
new.
,
,Nearly a ' century before, the Court held that the eighth
,
.
amendment did. not prohibit
death by
shooting.
.
13
While it
seems implicit that the ,Court would
, have then rejected the
-3-
argument that capital punishment was per se cruel and
Unusual, it is important that the question then before the
Court concerned not the penalty but a particular means of
' 1 ementl.ng
'
,14
l.mp
l.t.
Similarly, the Court subsequently held
that the electric chair was not a cruel and unusual method
'
15
o f ' execu t l.on.
In an especially bizarre situation involv-
, ing the mechanical failure of an electric chair, a second
attempt to execute the , condemned man did not constitute
'
d y or crue l ' and unusua l
' h ment. 16
d o ubI e Jeopar
punl.S
over~
More-
there was dicta in Trop stating that the death penalty
was not ' prohibited by the eighth amendment. 17
The years immediately prior to Furman did see several
extensions , of the cruel and unus~al punishment doctrine.
lS
Most important among these was its application to rape.
' In Maxwell v. Bishop" , the Eighth Circuit--per then Circuit
Judge Blackmun--held ' that the death penalty for rape was
not unconstitutional.
19
Substantial statistical information
tending to show that the penalty was arbitrarily imposed was
rejected.
When
, the case reached the Supreme Court in 1970,
it was remanded to the district court on a different ground,
,and the cruel and unusual punishment issue was not reached. 20
But in tha,t same year, the Fourth Circuit decided in Ralph
v. Warden that death for rape in ,'which the victim's life was
,
,
,
,
21
not endangered did constl.tute cruel and unusual punl.shment.
-4-
Using language which foreshadowed Furman, the court held:
"Infrequent imposition of the death penalty
, for rape not only indicates that it is excessive, 22
it also suggests that it is meted out arbitrarily."
On the basis of these rather limited excursions into
,the concept, of cruel and unusual punishment, the decision
, in Furman that capital punishment could in fact transgress
the eighth amendment was a definite expansion.
Even more
remarkable was the manner in which this result was reached.
Although at least two members of the majority considered
the death penalty to be cruel and unusual per se, the remaining ,three were conc'e rned with the procedures by which it was
,
'
23
assessed.
They would hold that capital punishment is cruel
an,d unusual , because of the arbitrary sentencing procedures
by which it is imposed.
This result was achieved by making
: a dramatic departure from the acceptance of discretionary
'sentencing.
Until Furman the , courts appear to have been favorably
disposed toward discretionary sentencing.
The year before
Furman was 'decided,
the Supreme court specifically approved
,
discretionary sentencing in capital cases. 24 The Court said
in this country there , was almost from the beginning a "rebel' ,lion against the common-law rule imposing a mandatory death
sentence on all convicted murderers."
25
By 1972 this rebel-
lion had reached the point where :the death penalty was dis-'5-
,
' 1a1 "Jur1s d"1ct10ns wh'1Ch prOV1'd ed f or 1t.
'
26
cret10nary
1n
Maximum discretion was viewed as essential to the sentencing
process.
27
One of the first steps down the road to maximum discretion was Winston v. United States.
28
There the Supreme
Court noted two methods for avoiding a mandatory death sentence for murder:
Defining
degr~
of murder or allowing
the jury discretion regarding punishment.
Half a century
later, the Court added a new dimension to discretionary sentencing by permitting
a
trial judge to disregard the jury's
verdict recommending life imprisonment and sentence the
,
defendant to death.
29
Discretion was justified as a means
of making the punishment fit the crime.
30
Nevertheless, the development of discretionary sentencing
did not go uncriticized.
The practice, at least as performed
by juries, was attacked as giving too much play to arbitrary
factors such as the personality and eloquence of the defendant's
attorney, and to the defendant's demeanor and age.
31
Another
critic concluded
, that juries generally assess heavier sentences
and that jury sentencing was nothing more than "santicified
,
32
guess1ng". ,
The state courts, however , continued to give implicit
recognition to the jury's discretion in
-6-
sente~cing.33
While
still a circuit judge, Mr. Justice Blackmun refused to overturn death sentences which were within the discretion of
'
I'
,
34
f edera
Jur1es.
Meanwhile, the Supreme Court had made
the first inroads into this discretion by noting the importance
0
"
f sta,n d ar d s to gU1'de t h e Jury
s ver d'1ct. 35
The first
,real chink in the panoply of the jury's discretion came when
the Court held that portions of the federal kidnapping law
had a chilling effect on the constitutionally protected right
to counsel.
If a defendant was tried before a judge, then he
was protected from the ,p o's sibi1ity of capital punishment: but
if he was tried before a jury, then such punishment was within
' d '1scret1on.
,36
1tS
Later the same year, the Court addressed
another f~ of jury sentencing in capital cases in witherspoon v. Illinois.
The Court held that the prosecution could
not "stack the deck" against the defendant by excluding all
potential jurors who 'merely expressed qualms about the death
penalty. 37
Important to the decision in Witherspoon was the
Court's concern that the jury reflect the "conscience of the
community" regarding
' the death penalty.
,
38
The controversy surrounding discretionary sentencing in
, I cases SEleme d ,to b
Id
' 39
cap1ta
e reso
ve '1n McGaut h a v. Ca l'1 f orn1a.
",,
"
After discussing the development of discretionary sentencing
in capital cases, the, Court held that the Due Process Clause
-7-
of the fourteenth amendment did not require standards to
guide that discretion.
In a companion case, crampton v.
Ohi·o , the Court further held that discretionary sentencing
. by the jury did not necessitate a separate punishment hearing.
It is significant that the Court expressly reserved
the question of the constitutionality of the death penalty
itself.
The Court concluded:
"In the light ·of history, experience, and
the present limitations of human knowledge, we
find it quite impossible to say that committing
to the untrammeled discretion of the jury the
power to pronounce life or death in capital
cases · is offensive to anything in the Constitution.,,40
Conversely, the three dissenters, Justices Douglas, Brennan
and Marshall, expressed confidence that standards could be
· devised to provide safeguards against what they viewed as
'
41
·· arb'1trary sent
enc1ng.
TH~
DECISION IN FURMAN V. GEORGIA
Against this background, the Supreme Court decided
Furman v. Georgia.
curi~m
The brief per
opinion holds that
the death penalty
violates the eighth amendment "in these
,
cases". 42
"These cases" were a Georgia conviction for murder,
a Georgia conviction for rape, and a Texas conviction for
rape. 43
. nothing.
"
Beyond that holding, thE! per curiam opinion says
Yet its brevity belies 'the Court • s turmoil in reach-
;"8-
ing that final decision.
Each of the nine members of the
court filed an opinion, and of the five concurrences, hone
was joined by another justice.
For these reasons, analysis
of what Furman really holds and what the Court would do if
.confront.e d .w ith a new death penalty statute is admittedly
speculative.
Because of the diverse individual opinions,
it is necessary to examine what each Justice said.
From
.this examination emerges a composite holding which might
command the support of five Justices.
The Court's senior member, Mr. Justice Douglas, concurred ,in the judgment of reversal but did not rea;ch the
question of whether a mandatory death penalty would violate
the eighth ,amendment.
44
Admitting that the death penalty
was not originally cruel and unusual punishment, he asserts
that the concept is not static, but is one which "evolves"
,45
as society "matures".
Mr. Justice Douglas also finds
that the theme of Equal Protection is implicit within the
meaning of cruel and unusual punishment. 46
Equal Protec-
tion is denied , when capital punishment is only imposed on
minorities:
The poor, the blacks, the uneducated.
After
this attack on discretionary sentencing, the Justice goes
on to make another .point very crucial for future statutes.
Any statute, even
,o~e
imposing a mandatory death penalty,
-9-
while satisfactory on its face, may still be unconstitutional
'
' t'10n •47
en f orcemen t resu·I t
s '1n d'1scr im1na
1'f 1tS
. Mr. Justice Brennan not only ' concurs in the judgment of
the Court, but would also declare capital punishment uncon'
··1. per se. 48
St1' t ut10na
Like Mr. Justice Douglas, he believes
' not sta t 1C
" 1n scope. 49
th a t crue 1 an d unusua 1 pun i s h ment 1S
Assailing discretionary sentencing, he concludes that "death
is not . the ordinary punishment for any crime.,,50
This fact
'a·long with his concern for human dignity leads him to the
~pinion that the death penalty may no longer be impos""d. 51
Interestingly enough, the two opinions probably most
decisive to the future of capital punishment are the two
briefest. .Mr. Justice Stewart states that capital punishment is "cruel" in that it is excessive because of the milder
punishments available for the same crimes.
It is "unusual"
in that death is rarely assessed for murder and hardly at
all for rape. 52
Capital punishment is unconstitutional when
legal systems permit it to be "so wantonly and so freakishly
imposed. ,,53
Clearly
Mr. Justice Stewart has reserved judg,
ment on the constitutionality of .a mandatory death penalty.54
Likewise, Mr. Justice White does not reach the issue of con.
stitutionality per se. 55 While confining his judgment to
. discretionary sentencing, he obs~rves that when the death
. -10-
penalty is rarely assessed and when it yields negligible
returns that . it is cruel and unusual.
56
Nevertheless, it
would seem to require a very tortured interpretation of
the opinion to read it as favoring a return to mandatory
death sentences.
57
Like Mr. Justice Brennan, Mr. Justice Marshall is of
the opinion that capital punishment is unconstitutional per
se.
58
After extensive historical and statistical analysis,
he decides that .a punishment can be cruel and unusual in
four instances:
Punishments that are inherently painful
· and abhorred ' by. civilized men;59 punishments that are
unusual or previously unknown for the offense;
ments that ,serve no valid legislative purpose;
60
61
punishand
punishments that may serve a valid legislative purpose but
.
62
which are abhorred by popular sentiment.
Applying these
criteria, the Justice concludes that capital punishment
does not serve valid legislative purposes,63 and that it
is regarded as both excessive and offensive by "informed"
ubl '
p~c
"
op~n~on.
64
There appears to be more agreement among the dissenters.
The opinion of the Chief Justice is joined by Justices Blackmun, Powell, and Rehnquist.
The Chief Justice favors jury
. discretion and considers i t a "re'finement". 65
-11-
Although he
seems to invite new death penalty legislation, he cite's
"McGuatha for, support of the proposition that jury discre,t ion cannot· be guided and opposes mandatory death penal ties. 66
Like ,the Chief Justice, Mr. Justice Blackmun entertains personal dislike for the death penalty but does not believe
that the Court has the authority to overturn it. 67
Unlike
the Chief Justice, however, he appears to be less sure about
the possibility of .capital punishment in the future. 68
Acknowledging that the way may be open for mandatory death
penalties for narrowly defined crimes, he views such legis.
.
.
69
"1 atl.ve
,a ctl.on,
as ,'regressl.ve".
The two newest members of the Court dissented.
Mr.
Justice , Powell, joined by the other dissenters, characterizes
the decision as a shattering blow to the principles of stare
decisis and separation of powers. 70
Conceding that cruel
and unusual punishment is not a static concept, he declares
that capital punishment is plainly constitutional. 71
The
Justice believes that Witherspoon is predicated on approval
of jury
discre~ion
and ,that any further objection to the
practice is fore closed by MC.G autha. 72
Mr. Justice Rehn-
quist's brief opinion, also joined by the other dissenters,
' does not really consider the deat? penalty itself.
i
For him
the issue is on~ of checks and balances and of states' rights. 73
-12-
If a "rule" can be derived from Furman, it must be a
composite of the majority opinions and the previous cases.
, F'irst, the concept of cruel and unusual punishment has
clearly been expanded to include at least some death sentences.
Because the concept is a dynamic one, it could
conceivably include all death sentences at some future date.
But the second and more dramatic part of Furman, is the
means by which the eighth amendment was expanded.
MCGautha
approved the jury's discretion to fix punishment in capital
cases and said that it was unfettered.
A year later, Furman
says that the very discretion sanctioned in McGautha has
been exercised so arbitrarily that a once constitutional
,
' punishment ,is now cruel and unusual.
74
Thus the dynamic
, concept of cruel and unusual punishment has evolved a very
significant new species.
The full impact 'of this new species upon all sentencing
procedures is, of course, far beyond the scope of this paper.
, Here the question is whether the effect ' of Furman is to make
c,a pital !lentencing impossible although the death penalty
"
itself may still be constitutional.
Specifically the question
is whether discretionary death sentencing is constitutional
in any case, and if it is not, whether it can be eliminated
' from statu~ues which purport to impose mandatory death sentences.
-13-
THE IMPLICATIONS OF FURMAN ON EFFORTS TO REINSTATE
CAPITAL PUNISHMENT
Confusion as to what Furman actually held is not surprising. 75
.
Two years before the decision was handed down,
former Justice Goldberg suggested that the Court should
. e.ither decide a case raising the issue of capital punishment as cruel and unusual, or merely continue chipping away
.
at the procedural. adniinistration of the death penalty.
The latter suggestion appears to have prevailed.
thing is clear, it is that Furman
~s
76
If any-
not a decision about
the death penalty itself, but rather about the process by
. which it is as.sessed.
In the wake of Furman, the proponents of the total
. abolition of capital punishment appear to have two grounds .
for future arguments.
First, it can be asserted that the
death penalty does not serve any valid purpose of criminal
law and, therefore, that it is cruel and unusual because
it is excessive. 77
Second, it can also be asserted that
capital punishment offends the public morality.78
Public sentiment toward capital punishment may well
.. be the key to efforts to reinstate it.
The contention has
been advanced that perception of capital punishment in the
.
..
.
abstract is unrealistically detached.
79
It has .been suggested
that "public approval of the death penalty is
-14-
depe~dent
upon
a hiding away of its grim realty. "BO
But the same author
concedes that a certain segment of the population would
relish public executions.
Probably the most accurate
observation about public opinion and the death penalty is
. that an abstract view promoted 'discriminatory enforcement.
.
-
-Since only members of . minority groups were executed, public
outrage was suppressed.
Bl
Nevertheless, public opinion in favor of capital punishment has been s.o substantial in some states that new legislation providing for the death penalty has been approved.
B2
One of the first attempts to reinstate capital punishment
was made in Florida. B3
This statute illustrates the diffi-
culties in .guiding discretion mentioned in McGautha.
First,
the statute provides for a separate punishment hearing after
determination of guilt or innocence.
B4
That this procedure
alone is not satisfactory is evidenced by the reversal in
Branchv. Texas (companion case to Furman) since .Texas had
already provided for bifrucated trials.
:r;equires that
~he
Next, the statute
jury assess death or life imprisonment
after deciding the existence of and weighing eight aggravating circumstances against seven mitigating circumstances.
BS
Finaily, th~ judge must reweigh the same factors and approve
.or
B6
disapprove the jury's sentence.-
-lS-
How this weighing is
to be done and what weight is to be given to which circumstances is not explained.
Except, iorthe omission of the word "discretion", the
Florida statute is very similar to the Model Penal Code's
"
87
suggested statute.
For that reason, criticism of it
' apPtfjwith equal force to the Florida statute.
Initially,
the list of mitigating circumstances is not necessarily
exclusive. 88
Therefore, it is possible for the jury to con-
sider other circumstances, thereby thwarting the legislature's
attempt to guide its discretion.
89
In addition, the death
penalty is not required if aggravating circumstances are
found.
90
The
v~ry
concept of jury discretion is predicated on the
assumption that some, but not all, capital offenders should
91
be executed.
But this assumption has been seriously chal-
lenged, if not completely repudiated, by Furman.
What the
'F.lorida statute and those like it have done is to forthrightly
" attempt to establish precise, objective standards to guide the
jury and the court.
In spite of this effort, the death penalty
need not invariably be assessed in any given factual context.
This situation illustrates the enormous difficulty of defining
standards which was adverted to in McGautha. 92
The better
view appears to be that , the less 'discretion accorded the courts
.•
,
and juries, the more likely the Court is to uphold the
.
.
93
legislation • .
If even guided discretion cannot prevent discrimination,
. the question then becomes whether ·a mandatory death penalty
would offend the eighth amendment.
It · has been suggested
.. that · a statute prescribing a mandatory death penalty for a
few narrowly defined crimes is most likely to win the Court's
approval. 94 . This is in effect what has been done in Delaware.
In State v. Dickerson, the state supreme court struck down
. the portion of its death penalty statute which allowed the
jury to recommend life imprisonment instead of death. 95
. However, the court candidly acknowledged that jury nullification--refu~alto
convict when the penalty is death--or convic-
·tion .for lesser included offenses can still render the statute
unconstitutional under Furman. 96
Th.e proJ:>lem of :Jury nullification in capital cases was
one of the main reasons for the development of discretionary
sentencing. 97 . Indeed, .a truly mandatory death penalty is
probably "political:ly
unacceptabl.e ".
,
98
If this prediction is
correct, then the Supreme Court may have avoided declaring
the death penalty uncon.s titutional by making it so onerous
that no state will want it.
Before reaching the point at which mandatory death penalties are regarded . as too severe, it is likely that some
jurisdictions will seek other means Of avoiding its absolute
-17,
nature.
A possibility that comes immediately to mind is
the discretion of the prosecutor as to what persons will
be charged with which crimes ' and what pleas will be accepted •
. 'I'he pros.e cutor' s discretion is presently as free as the jury's
once was. 99
Mandatory sentences may also be circumvented
.. through manipulation of the charge.
100
Even before the prose-
cutor enters the picture, the police exercise substantial discretion over the inve.s tigation of crimes and the decision to
arrest.101After a particular accused is on trial for a
'"capital offense, the jury may well have de facto discretion
. by virtue of its determination of' state of mind.
102
'I'he
Supreme court has held that jury instructions regarding the
. d e f end'"ant s state.
0
f m1n
. d are not requ1re
. d' • 103
Moreover,
the question of insanity has usually been thought to be one
for the jury.104
In relating this problem to the Florida
statute, it should .be observed that two of the seven miti. gating circumstances concern "mental or emotional distress"
105
and "ca'p acity to appreciate criminality of an act".
Finally , at .the, end of the criminal justice system , discretion appears once again in the form of executive clemency.
106
Although the relative rarity of clemency makes it less
significant, the other possibilities for discretion and consequently discriminatiOn are real.
' -18-
'I'here seems to be no
justification for distinguishing between what agency is
exercising the discretion so long as arbitrary results
are produced.
If discretion can make a punishment cruel
and ' unusual, then it should ,not be limited to jury discretion'.
The problem is in proving the possibility for
discretion, proving that it is being exercised, and ultimately proving that its exercise causes wanton and freakish
results.
Of course, if the statute provides for guided dis-
cretion instead of a mandatory death penalty, then concentration can be focused directly on proving discriminatory
sentences.
The 'insidious aspect of this problem is that a
number of death sentences might have to be imposed before
convincing ,proof was available to show that enforcement of
an apparently valid statute made it unconstitutional.
The implication of Furman, then, is that while the
death penalty is not ' necessarily , unconstitutional, it must
be constitutionally imposed.
To be constitutionally imposed,
it must not be assessed against persons selected irrationally.
To avoid irrationaiselection,
it appears that only a truly
,
'
mandatory 'death penalty which is strictly enforced will suffice.
The two theories described at the ~eginning of this section of this ' paper-.;.affront to public "morality and valid publicpurpose-.;.can nOw be measured against such a statute.
-19-
107
An absolute death penalty would be so Draconian that it
would probably offend a majority of the public.
Additionally,
since the statute would be so severe, a much higher showing
of necessity should be demanded of the state.
What offends public morality is admittedly nebulous.
However, the necessity of the death penalty should be balanced
against several other more concrete considerations.
The de-
mise of the death penalty could reduce the criminal caseload.
When .the penalty is death, the Supreme Court has acknowledged
that it, like other appellate courts, resolves doubts and
.
strains evidence to give the condemned man another chance.
Without the death penalty, insanity pleas might decline.
108
The
• insanity defense is not liked by defendant's since it results
. an 1n
. d e f·1n1te
.
.
'
f u 1 • 109
,1n
comm1tment
1. f success
There f ore, t h e
incidence of the insanity defense varies with the severity of
,
.
the potential pun1shment.
110
These factors make it even more
improbable that an absolute death penalty could be justified
as serving some yalid public purpose.
Therefore', the logical conclusion to be drawn from
'.
FUrman is a tautology:
A death penalty statute acceptable
to the public ' will be unconstitutional: a constitutional death
:
'.'
penalty statute will be unacceptable to the public.
-20-
FOOTNOTES
1.
Furman v. Georgia, 408 U.S. 238(1972)
2. GA. COOB ANN. 826-1005 (8upp . 1971) (.ff.ct~v.
prior to July 1, 1969): GA. CODE ANN. §26-1302 (Supp.
1971) (effective prior to July 1, 1969): TEX. PENAL CODE
ANN., art. 1189 (1961).
3. As of March 12, 1972, Ohio, Wyoming, Florida,
and Georgia had passed new death penalty statutes. Lubbock
Avalanche-Journal, March 12 , 1972, at 8, col. 2 (Morning ed.).
On March 26, 1972, this group was joined by New Mexico.
Dallas Morning News, March 27, 1972, at 11, col. 4. In
response to certified questions, the Delaware supreme court
held that the portion of its state statute allowing the jury
to recommend life · imprisonment instead of death for convicted
· murderers was unconstitutional after Furman. The remaining
mandatory death penalty provision was upheld as constitutional.
State v. Dickerson, De1.Supr., 298 A.2d 761 (1972)
4.
U.S.CONST. amend. VIII.
5. Comment, The Death Penalty Cases, 56 CALIF . L. REV.
1268 (1968). pages 1339-41 catalogue what the authors consider the cruelty of the various forms of execution in the
United States.
6. People v. Anderson, 6 Cal. 3d 628, 100 Cal. Rptr.
152, 493 P.2d .88Q tl~7i).
'
7. Townsend v. Burke , 334 U.S. 736 (1948): Badders v.
United States, 240 U.S. 391 (1916).
8.
Howard v. Fleming, 191 U.S. 126 (1903).
9..
O'Neii
v. vermont, 144 U.S. 323 (1892).
10.
Weems v. United States, 217 U.S. 349 (1909).
11.
Trop v. Dulles, 356 U.S. -86 '1958).
12 .
Robinson v. California, :370 U.S. 660 (1962).
13.
wilkerson v. Utah, 99 U.S. 130 (1879).
14.
Wilkerson at 135-36.
15. In re Kemmler, 1 36 u.s. 436 (1890). Note, however,
that there if!. language suggesting that the death penalty
' itself is not violative of the eighth amendment. "punishments are cruel when they involve torture or a lingering
death: but the punishment of death is not cruel within the
meaning of that word as. used in the constitution. It
implies there is something more than the mere extinguishment
of life." Kemmler at 447.
16. Louisiana ex reI. Francis v. Resweber, 329 U.S. 459
(1947).
"The traditional humanity of modern Anglo-American
law forbids the infliction of unnecessary pain in the execution of the death sentence." Resweber at 463.
17. Trop, supra, at 99. This language has been criticized, however. "By any standard, the psychological torture
inherent in every execution, and the physical torture quite
probably inflicted by many executions, render capital punishment far crueler than expatriation. Yet the latter has been
held violative of the eighth amendment and the former has not."
Comment, The Death Penalty Cases, supra , at 1487.
18. Jackson v. Bishop. 404 F.2d 571 (8th Cir. 1968).
Injunction against flogging in Arkansas prisons granted.
Wright v. McMann, 387 F.2d 519 (2d Cir. 1967). Placing state
prisoner in solitary "strip cell" without basic hygiene facili. ties and protection for the elements prohibited.
19.
Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968).
20.
Maxwell v. Bishop, 398 u.s. 262 (1970).
21. Ralph v. Warden, 438 F. 2d 786 (4th Cir. -1970), cert.
denied, 408 u.s. 942 (1972) .
22.
Ralph ' at 792.
23. See discussion of the opinions of Douglas, Stewart,
. and White, JJ. , infra .
24.
McGautha v. California, 402 u.S. 183 (1971).
25.
McGautha at 198 • .
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26. Comment, Jury Discretion and the Unitary Trial
Procedure in Capital Cases, 26 ARK. L. REV. 33 (1972). The
author concludes that after McGatitha the power vested in the
jury to ,determine the penalty in capital cases is "absolute,
unfettered, and unguided by the court." Comment, supra, at 37.
' 27. "The existence of broad discretion in the correctional
process seems to be the result of deliberate choice reflecting
the assumption that effectiveness of the process depends on the
existence of, maximum discretion." R. DAWSON, SENTENCING, at
378 (1969).
28.
Winston v. United States, 172 U.S. 303 (1899).
29. Williams v. New York, 337 U.S. 241 (1949). See Also:
Andres v. United States, 333 U.S. 740 (1948). Concurring
opinion of Frankfurter, J. presents extensive analysis of
discretionary sentencing techniques .
30.
Williams at 247.
31. LaFont, Assessment of Punishment--A Judge or Jury
Function?, 38 TEXAS L. REV. 835 (1960).
32. Webster, Jury Sentencing--Grab-Bag Justice, 14 Sw.
L.J. 221 (1960).
33. People v. Spann, 20 Il1.2d 338, 169 N.E.2d 781 (1960) 1
Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915 (1952).
34. Feguer v. United States, 302 F.2d 214 (8th Cir. 1962),
cert. denied, 371 u.S. 872 (1962)1 Pope v. United States, 372
F.2d 710 (8th Cir. 1967) (in banc), vacated & remanded, 392
U.S. 651 (1968) .
35.
Giaccio v. Pennsylvania, 382 U.S. 399 (1966).
36. United States v. Jackson, 390 U.S. 570 (1968).
Jackson was the basis of the remand in Pope, supra.
37. Witherspoon v.' ,Illinois, 391 U.S. 510 (1968). Note
the dissent by Black, J. "This seems "to me to be but a thinly
veiled warning to the States that' they had better change their
jury selection procedures or face a decision by this Court that
their murder convictions have been obtained unconstitutionally."
Witherspoon at 539~
,
-23-
38.
Witherspoon at 519.
39.
McGautha, supra.
40. McGautha at 207. The Court further reasoned:
"To
identify before the fact those characteristics of criminal
homicides and their perpetrators which call for the death
penalty, and to express these characteristics in language
which can be fairly understood and applied by the sentencing
authority, appear to be tasks which are beyond present human
. abili ty. " McGautha at 204.
41.
McGautha at 283.
42.
Furman v. Georgia, 92 S.Ct. 2726, 2727 (1972).
43. Furman v. State, 225 Ga. 253, 167 S.E.2d 628 (1969)
(murder): Jackson v. State, 225 Ga. 790, 171 S.E.2d 501 (1969)
(rape): Branch v. State, 447 S.W.2d 932 (Tex.Crim.App. 1969).
44.
Furman at 92 S.Ct. 2736.
45.
Furman at 92 S.ct. 2728.
46.
Furman at 92 S.Ct. 2732 .
47. "Any law which is nondiscriminatory on its face may
be applied in such a way as to violate the Equal Protection
Ciause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118
U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. Such conceivably might
be the fate of a mandatory death penalty, where equal or
lesser sentences were imposed on the elite, a harsher one on
the minorities or members of the lower castes." Furman at
92 S.Ct. 2735-36.
48.
Furman at 92 S.ct. 2760.
49.
Furman at 92 S.Ct. 2742.
50.
Furman at 92 S.Ct . 2753.
51. Furman · at 92 S.Ct. 2742.> According to Mr. Justice
Brennan, the test is a "cummulaltive one". . Furman at 2748.
2762~;
52.
Furman at 92 . S.Ct.
53.
Furman at 92 S.ct. 2763.:
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54.
Furman at 92 s.ct. 2761.
55.
Furman at 92 s.ct. 2763.
56.
Furman at 92 s ·.Ct. 2764.
57.
"The short of it is that the policy of vesting
sentencing authority primarily in juries--a decision largely
motivated by the desire to mitigate the harshness of the
law and to bring community judgment to bear on the sentence
as well guilt or innocence~-has so effectively achieved its
.a ims that capital punishment within the confines of the
statutes now before us has for all" practical purposes run
its course." Furman at 92 S.Ct. 2764.
58.,
Furman at 92 S.Ct. 2793.
59.
Furman at 92 S.Ct. 2773. '
60.
Furman . at 92 S.Ct. 2773.
61.
Furman at 92 S.Ct. 2773.
' 62.
Furman at 92 S.ct. 2774.
63.
Furman at 92S.Ct. 2779.
64.
Furman at 92 S.Ct. 2788.
65.
Furman at 92 S.Ct. 2803.
66.
Furman at 92 S.Ct. 2810.
67. F.urman at 92 S.Ct. 2816. This position is consistent
. . with his earlier decisions while a circuit judge. See note 34,
supra. curiously, Mr. Justice Blackmun appears to be more
willing to give a broad, evolutionary construction to the
eighth amendment when the punishment is flogging than when it
is death. Compare the cases in note 34 with Jackson v. Bishop,
note 18, supra.
68. "The Court has just decided that it is time to strike
down the death penalty." Furman at 92 S.Ct. 2813.
69.
Furman at <92 S; ct. 2816 •.
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70.
Furman at 92 S.Ct. 2818.
71. FUrman at 92 S.Ct. 2819. Mr. Justice Po.well, as
do.es the Chief Justice, places seme reliance en the existence
ef capital punishment at the time the Bill o.f Rights was
'a ppro.ved. This view appears to. be similar to. the histerical
t~st eften used by his predecesser, Mr. Justice Black.
See:
Cencurringepinien o.f Black, J. in McGautha, supra.
72. Furman at 92 S.Ct. 2822-23. In spite o.f this belief,
Mr. Justice Powell might fellow Furman in the future as stare
decisis.
"The so.bering disadvantage ef censtitutienal adjudicatien ef this magnitude is the universality and permanence
ef the judgment. ,i Furman at 92 s.ct. 2840. That Furman will
be fo.llowed by the Co.urt in ether cases 'is seen by Meere v.
Illineis,
U.S. '
,92 s.ct. 2562 (1972).
73.
Furman at 92 S.Ct. 2842.
74. Junker, The Death penalty Cases:
Co.mment, 48 WASH. L. REV. 95, 96 (1972).
A Preliminary
75. Cempare Junker, supra, at 104 "(C)apital punishment
w.a s no.t killed by the Co.urt, it had already co.mmitted suicide."
with Co.mment ·, Furman v. Geo.rgia--Death Knell fer Capital Punishment?, 47. ST. JOHN'S L. REV. 107, 139 (1972), "Mandatery
death sentences which have impo.sed fo.r first degree murder,
fo.r narro.wly defined catego.ries o.f murder o.r fo.r rape are
unaffected by the Ceurt's helding ••• ".
76. Go.ldberg & Dersho.witz, Declaring the Death Penalty
Unco.nstitutio.nal, 83 HARV. L. REV. 1773, 1805 (1970).
77.
"Since the needless inflictien ef pain is mo.re cruel
than the necessary inflictio.n o.f pain, the efficacy o.f a particular punishment is an issue the Ceurt canno.t avo.id." Gunther,
The Supreme Co.urt 1971 Term, 86 HARV. L. REV. 1, 82 (1972).
See also.: 4 SW.U.L.REV . 343 (1972).
78. Gunther, supra, at 80. Cf. T.SELLIN, THE DEATH
PENALTY, A REPORT FOR THE MODEL PENAL CODE PROJECT OF THE
AMERICAN LAW INSTITUTE, 81 (1959)~
"When a peeple no. lo.nger
to.lerate the idea efputting a perso.n to. death ibr a crime,
the death penalty will disappear no. matter what may happen
to. ml,lrder rates ·, fer this is what has happened in the past
in co.nnectien withpreperty crimes."
-26-
79. Gunther, supra, at 83 , nete 48. Fer an undetached
view, see: A.CAMUS, Reflectiens en the Guilletine, in
RESISTANCE, REBELLION, AND DEATH 131, 151-52 (Medern Library
ed., J.O'Brien transl. 1960).
80.
Geldberg & Dershewitz, supra, at 1783.
81 Cemment, Furman v. Geerqia-- Death Knell fer Capital
Punishment?, supra, at 123.
82.
See nete 3, supra .
83 .
FLA.STAT.ANN., Ch. 72-724, Sectien 921.141 (1972).
84.
Ibid.
-
85.
Ibid.
86.
Ibid.
87. MODEL PENAL CODE,
May 4, 1962).
§
210.6 (Prepesed Official Draft,
88. Cempare "Mitigating circumstances shall be the
fellewing" with "Aggravating circumstances shall be limited
to. the fellewing". FLA..STAT.ANN., Ch. 72-724, Sectien
,921.141 (1972).
89. Cemment, A Study ef the Califernia Penalty Jury in
First-Degree Murder Cases, 21 STAN.L.REV. 1297 , 1423 (1969).
90.
FLA.STAT.ANN .• Ch. 72-724, Sectien 921.141 (1972).
91 Knewlten, Preblems ef Jury Discretien in Capital Cases,
101 U.PA.L.REV. 1099 (1953). The auther later criticizes this
practice .
" There can be no. unifermity ef punishment fer like
effenders , and , the interests ef the state as wel l as the defendant will be jeepardized as leng as the jury is allewed to. fix
the punishment." Knewlten, at 1131-32.
9 2 . See: Williams, Jury Discretien in Murder Trials,
17 MODERN L . REV. 315,321 (1954). ' Discussing the preFesal ef
the Reyal Cemmissien en Capital Punishment. the auther quetes
remarks by Lerd Cherley befere the Heuse ef Lord,s :
" By setting
eut extenuating circumstances. we limit the circumstances to.
these which are set eut in t he statute. and it is' impossible
fer the draftsman to. fereclese every sert ef extenuating circumstance which may pessibly aril!e. " Williams at 321.
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93.
TEX.ATT'Y GEN.OP.NO. H-13 (1973).
94. Comment., Furman V. Georgia--Death Knell for Capital
Punishment? ,supra, at 139.
95.
Stat. v, Dieke:r:aon, Da1.Supr., 298 A.2d 761 (1972).
96.
"Obviously, any lack of uniform app1icati on--any "
qiscrimination or caprice in the imposition of the death sentence via the 1esse"r-inc1uded offense route--wi11 expose the
mandatory death penalty provision of the Murder Statute, hereby
upheld, to the same condemnation as was accorded the Mercy
Statute in the Furman case." Dickerson at 770.
97. Togman, The Two-Trial System in Capital Cases, 39
N.Y.U.L.REV. 50, 52 (1964); Knowlton, supra, at 1130.
98. Comment, A Study of the California Pena1tv Jurv in
First-Degree Murder Cases, 21 STAN. L. REV. 1297, 1424 (1969).
99. Oyler v. Boles, 368 U.S. 448 (1962); Newman v. United
States, 382 F.2d 479 (D.C.Cir. 1967) (Opinion by Burger, J.);
Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963). In this connection, note that .the new Florida statute makes elaborate provisions for the characterization of felonies as capital, life,
. first-degree;: second-degree, or third-degree. FLA.STAT.ANN.
ch. 72-724, Section 775.081 et seq. (1972).
100.
R.DAWSON, SENTENCING, 381 (1969).
101. Remington, .Editor's Forward, at xix, in R.DAWSON,
. SENTENCING (1969).
102. Gunther, The Supreme Court 1971 Term, 85 HARV.L.REV.
1, 85 (1972).
103.
Fisher v. United States, 328 U.S. 463 (1946).
104. United States v. Hart, 457 F.2d 1087 (10th Cir. 1972);
Parman v. Uniteq States, 399 F.2d 559 (D.C.Cir. 1968), cert.
denied, 393 U.S. 858 (1968).
105.
FLA.STAT.ANN., th. 72-72:4, Section 921.141 (1972).
106.
Cf.
Bidd1ev. Perovich,: 274 U.S. 480 (1927).
-28-
107.
See notes 77-78, supra.
108. Williams v. Georgia, 349 u.S. 375, 391 (1955):
Stein
New York,24f5 U.S. 156, 196 (1953): Andres v •
. United States, 333 U.S. 740, 752 (1948): Powell v. Alabama,
287 U.S. 45 (1932). The use of the death penalty to coerce
pleas is not considered ·as beyond the scope of this paper.
v.
109. Shadoan, Raising the Insanity Defense: The Practical
Side, 10 AM.CRIM.L.REV. 533 (1972): Comment, The Rights of
the Person Acquitted by Reason of Insanity: Equal Protection
and Due Process, 24 MAINE L.REV. 135 (1972).
110. A.MATTHEWS, MENTAL DISABILITY · AND THE CRIMINAL LAW,
193 (1970) • •
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