Saturday, June 29th, marks the anniversary of the landmark Furman v. Georgia Supreme Court decision, which established a nationwide moratorium on capital punishment that lasted from 1972-1976.
The Furman ruling examined three capital cases and evaluated them against the Eighth Amendment, which protects against “cruel and unusual punishment,” and the Fourteenth Amendment, which ensures due process under the law. Despite a multitude of conflicting positions and arguments, even among those on the same side, it was decided that the death penalty violated constitutional protections by a 5-4 margin and it’s practice was halted.
Three justices found that the application of the death penalty showed a pattern of discrimination and bias, making the punishment both “unusual” and lacking in due process. Justice Douglas said:
"These discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments."
And two other justices went even further to declare that the death penalty is unconstitutional in all forms, regardless of its application, because it was not consistent with “evolving standards of decency” and thus was definitively “cruel and unusual punishment.” Justice Stewart issued a complete rejection of the practice, saying:
"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunicaiation of all that is embodied in our concept of humanity."
Unfortunately, the moratorium brought on by this decision did not stand for long. In a series of cases culminating in Gregg v. Georgia, the death penalty was reinterpreted to be a matter of state’s rights, reopening an old wound, and restoring power to the prejudice and bias surrounding capital punishment. Ever since, practice of the death penalty has continued in the United States. Today, it is legal in 32 states.
Despite being overturned, Furman continues to be relevant to today’s dialogue on capital punishment. Both arguments made by the majority opinion still stand true. Racial discrimination remains an overwhelming factor in capital sentencing, documented in almost every state that uses the death penalty with frequency. This June, we saw the execution of three African American men within 24 hours. And, according to statistics recently published in The Atlantic, blacks make up a disproportionate share of death row seats relative to state population in all three states where these executions occurred. Nationally, 42 percent of death row is black, while blacks make up only 13 percent of the general population.
Also, the death penalty continues to become more and more out of line with our “evolving standards of decency.” The gory details of the botched execution in Oklahoma and resulting public outcry have shown that this form of punishment is no longer consistent with our values as American citizens. And further, the US remains one of the last developed democracies to use capital punishment, making our justice system an outlier among global standards of decency.
This Saturday, we celebrate Furman for its powerful arguments and are grateful to it for exposing so many of the injustices of capital punishment. It has established a precedent and legacy that we hope to carry with us in this fight. As the events of the past few months have unfolded, it has become clearer than ever that we must halt all executions. Furman shows that it is possible. With your support, we can make it happen again.