Policy Review of Furman v Georgia
Mr. Justice Douglas found capital punishment to be a problem based mainly on the punishment’s discriminatory nature. Douglas said, “It would seem to be incontestable that the death penalty inflicted on one defendant is “unusual” if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices” (“Furman v. Georgia”, 1972). Douglas considered the death penalty ‘unusual’, and therefore against the constitution due to the arbitrary and discriminatory nature in which the punishment was carried out. The death penalty mostly targeted blacks and the poor.
Mr. Justice Brennen’s argument focused on the punishment being severe and degrading, unacceptable to society, being arbitrarily carried out, and no more effective than imprisonment. Brennen saw capital punishment as being severe and degrading. In terms of the punishment being arbitrary, Brennen summed the argument up best when he said of capital punishment, “indeed, it smacks of little more than a lottery system” (“Furman v. Georgia”, 1972). There are so many case of murder each year in the United States, but only a very small percentage of these criminals are actually executed, making capital punishment an unordinary, and therefore, unconstitutional punishment,. Brennen also found capital punishment to be unacceptable to society as evidenced by society’s reluctance to carry out the death penalty. Juries only very rarely impose the death penalty on a criminal. Brennen said, “When an unusually severe punishment is authorized for wide-scale application but not, because of society’s refusals, inflicted save in a few instances, the inference is compelling that there is a deep-seated reluctance to inflict it” (“Furman v. Georgia”, 1972). Brennen also argued that “There is no reason to believe that it serves any penal purpose more effectively than the less sever punishment of imprisonment” (“Furman v. Georgia”, 1972). In order for the punishment not be excessive there must not be another, less severe punishment that would serve the purpose.
Mr. Justice Stewart argued capital punishment was cruel and unusual and discriminatory. Regarding the cruel and usual aspect of capital punishment, Stewart said, “These death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual” (“Furman v. Georgia”, 1972). Of all the criminals convicted of a capital offense only very few will be chosen to receive the death penalty. This way of viewing capital punishment as cruel and unusual mirrors Brennen’s referral to the punishment as a ‘lottery system’, in both references it becomes clear the Justices see the death penalty as a very random punishment. Stewart also cites discrimination by race as a problem with capital punishment. Stewart argued that the part of the random selection of the death penalty that might be seen as more of a selection was the basis of race on whether or not a certain person would be sentenced to the death penalty.
Mr. Justice White based his argument on the fact that capital punishment did not satisfy society’s need for retribution, and had little or no deterrent effect on other criminals. White said, “When imposition of the penalty reaches a certain degree of infrequency, it is doubtful that any existing general need for retribution would be measurably satisfied” (“Furman v. Georgia”, 1972). White felt the death penalty had little deterrent effect as it was carried out so infrequently as not to be taken seriously by others.
Mr. Justice Marshall argued against the death penalty based on the following: no deterrent effect, retribution deemed improper, discriminatory by race and gender, among others, recidivism rates low anyway. Marshall discussed the deterrent effect of the death penalty, arguing that, “The two strongest arguments in favor of capital punishment as a deterrent are both logical hypotheses devoid of evidentiary support, but persuasive nonetheless” (“Furman v. Georgia”, 1972). The first proposition stated by Sir James Stephen states the death penalty is an effective deterrent because there is no greater fear a human has than death. The second proposition is there in nothing to stop an inmate with a life sentence from committing murder in prison if there is no threat of capital punishment. Evidence suggests that these propositions are not true. Marshall state, “In sum, the only support for the theory that capital punishment is an effective deterrent is found in the hypotheses with which we began and the occasional stories about a specific individual being deterred from doing a contemplated criminal act” (“Furman v. Georgia”, 1972).
Marshall concludes that capital punishment has no deterrent effect. Referring to retribution Marshall argues that using the death penalty for purposed of retribution violates the 8th amendment. Marshall felt capital punishment was discriminatory in many ways. He said,” Indeed a look at the bare statistics regarding executions is enough to betray much of the discrimination” (“Furman v. Georgia”, 1972). Far more blacks than whites were executed; also men are targeted for the death penalty much more frequently than women. “It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged member of society” (“Furman v. Georgia”, 1972). This discrimination made capital punishment unconstitutional in the view of Mr. Justice Marshall. Marshall also argues that recidivism rates are low among murderers anyway, and that the death penalty does nothing to lower these rates.
These five Justices used their majority opinions to declare capital punishment unconstitutional. Their reason, in many cases similar to each other, were used to successfully argue the death penalty is unconstitutional.
Mr. Justice Douglas used his reasons to ban capital punishment by arguing that capital punishment was indeed cruel and unusual punishment. By arguing that the death penalty was unusual, he argued that if a punishment is discriminatory in nature then it is unconstitutional. Douglas backed up his claim of discriminatory sentencing by referring to statistics showing the unequal application of the death penalty for whites versus blacks. He also argued that “It is “cruel and unusual” to apply the death penalty- or any other penalty- selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular” (“Furman v. Georgia”, 1972).
Mr. Justice Brennen used his argument to ban capital punishment as unconstitutional. Using statistics, Stewart shows the death penalty to be unordinary. In relation to the growing population in the United States, Brennen showed evidence that the death penalty had been carried out less and less as the decades moved on. He argued it is carried about arbitrarily and that “It is highly implausible that only the worst criminal or that those who commit the worst crimes are selected for this punishment” (“Furman v. Georgia”, 1972). He also showed the death penalty to be unacceptable to society by showing that society had become increasing unwilling to carry out the death penalty.
Mr. Justice Stewart argued cruel and unusual punishment and discrimination by race. He stated, “If any basis can be discerned for the selection of these few to be sentence to die, it is the constitutionally impermissible basis of race” (“Furman v. Georgia”, 1972). By stating race as a ‘ constitutionally impermissible basis’ for inflicting the death penalty, Stewart showed capital punishment as being clearly unconstitutional. He also stated, “8th and 14th cannot tolerated the infliction of a sentence of death under legal system that permit the unique penalty to be so wantonly and so freakishly imposed” (“Furman v. Georgia”, 1972). With references to the 8th and 14th amendments, Stewart makes his case that the death penalty is unconstitutional.
Mr. Justice White used his arguments to ban capital punishment by pointing out that the punishment is used so infrequently. With the punishment being used so infrequently it holds no deterrent effect, nor does it satisfy any need for retribution. “Most important, a major goal of the criminal law- to deter others by punishing the convicted criminal-would not be served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others” (“Furman v. Georgia”, 1972). With the rare use of the death penalty White made it clear that the punishment was inefficient in deterring criminals.
Mr. Justice Marshall used the 8th amendment to successfully make an argument to ban capital punishment, He said, “The history of the 8th supports only the conclusion that retribution for its own sake is improper” (“Furman v. Georgia”, 1972). By referring to the 8th amendment, Marshall made a strong case for declaring the death penalty unconstitutional. He also used statistics that clearly show the discriminatory nature of the punishment, especially as is applied to the number of blacks executed versus the number of whites executed.
With similar and overlapping arguments, the five majority Justices of the United States Supreme Court were able to declare capital punishment unconstitutional in Furman v. Georgia. Their argument regarding cruel and unusual punishment, discriminatory practices and the arbitrary uses of the death penalty, among other reasons clearly stated why the death penalty was ultimately deemed unconstitutional in this case.
Reference:
Furman v. Georgia. (1972). Retrieved January 12, 2004, from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=408&invol=238
