June 29, 2012 (Friday) is the 40th anniversary of the U.S. Supreme Court’s decision in Furman v. Georgia, in which the Court found that the lack of standards for imposing the death penalty enabled the penalty to be applied arbitrarily, thus violating the Eighth Amendment’s ban on cruel and unusual punishments. In nine separate opinions, and by a vote of 5 to 4, the Court voided every state’s existing death penalty statute, commuted the sentences of death row inmates around the country, and suspended the death penalty. In his concurrence, Justice Douglas wrote, “[W]e deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12.” Justice Marshall further underscored the death penalty’s arbitrariness in his concurrence: “It also is evident that the burden of capital punishment falls upon the poor, the ignorant, and the underprivileged members of society. It is the poor, and the members of minority groups who are least able to voice their complaints against capital punishment. Their impotence leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape.”

The death penalty was reinstated four years later in Gregg v. Georgia, when the Court approved new sentencing schemes intended to make the death penalty less arbitrary. However, some law officials and legal experts claim that the death penalty continues to be arbitrarily applied despite these new sentencing schemes. Justice Harry Blackmun, one of the justices in the Gregg majority, later changed his mind and concluded the theory he upheld in 1976 had not worked in practice: “For more than 20 years I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies” (Callins v. Collins, 1994).

(DPIC Posted, June 26, 2012). Read full text of Furman v. Georgia and Gregg v. Georgia. Read DPIC’s report, “Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Reinstatement in 1976.” See U.S. Supreme Court. Listen to our podcast on Arbitrariness.

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