The Supreme Court has never held that the death penalty, per se, is a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. However, in Furman v. Georgia (1972), the Court found that Georgia’s death penalty statute was defective because it allowed juries too much discretion in deciding who would receive the death penalty, leading to arbitrary and discriminatory sentencing patterns. In particular the Court was troubled by statistics demonstrating that African Americans were more likely than whites to receive the death penalty for similar types of crimes.
The Court was not unified in its reasoning (nine different opinions were issued in this case). Two justices argued that “evolving standards of decency” had reached the point to where the death penalty was no longer acceptable under any circumstances. The other three justices who constituted the five-member majority were concerned about due process and equal protection violations present in the statutes, but rejected the argument that the death penalty could never be permitted under the Constitution. The dissenters argued that the courts should defer to popular opinion and legislative prerogatives in sentencing decisions, noting that public opinion and a majority of state legislatures favored use of the death penalty. They also argued that the Court had failed to follow precedent.
The ruling in Furman effectively ended executions for a number of years. However, most states redrafted their death penalty statutes in an effort to bring them into compliance with Furman. Several of these statutes were challenged in the Death Penalty Cases of 1976 (see Gregg v. Georgia (1971)). The Court approved a number of these statutes, and use of the death penalty resumed.
Robert M. Bohm, The Death Penalty in America (Cincinnati, OH: Anderson Publishing Company, 1991); and Bryan Vila and Cynthia Morris, eds., Capital Punishment in the United States: A Documentary History (Westport, CT: Greenwood Press, 1997).