I’m going to level with you: I love it when the Supreme Court issues rulings as it gives me immediate thought on what to write about and given the recent of news of momentous Supreme Court decisions on a number of hot button issues including affirmative action, it reminds me of a time past in which the Supreme Court shook up the administration of criminal justice 51 years ago. Richard Nixon had run for president in 1968 on platform involving cracking down on crime and appointing “strict constructionists” to the Supreme Court and by 1972, he had picked four justices: Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, and William Rehnquist. That year, the Supreme Court issued its conflicted ruling in Furman v. Georgia, which ruled all death penalty laws in the United States as having violated the 8th (“cruel and unusual punishment”) and 14th Amendments on account of the “arbitrary and capricious” manner of imposition (Justia). The facts of the case were that William Furman, a black house robber, had killed a homeowner in 1967 while fleeing by either firing blindly behind him or accidentally firing after tripping. A mental evaluation of him found that he had “well below the average of IQ of Texas prison inmates” (Justia). Possibly playing a role in his being sentenced to death rather than a term of imprisonment were his race and intelligence, the former as he was convicted in a state that had elected as its governor Lester Maddox, a man who had closed his diner rather than serve black customers.
The decision issued on June 29, 1972, was 5-4, but every justice had their own opinion, and the majority were not agreed on what the future of the death penalty should be. Justices Byron White and Potter Stewart thought that the death penalty could be constitutional but that the current laws were unconstitutional given disproportionate imposition on people who were poor, black, and young. As Stewart wrote, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual” (Glass). Justice William O. Douglas found the death penalty to contravene the 8th Amendment but he didn’t necessarily call for its abolition. Justices William Brennan and Thurgood Marshall, on the other hand, were opposed to the death penalty in all cases, and regarded all such instances as unconstitutional under the 8th and 14th Amendments given the “evolving standards of decency” (Justia). In dissent were all of Nixon’s picks to the court, who disputed that a law existing in 40 states was against “evolving standards of decency”. Chief Justice Burger contested the application of the 8th Amendment while Justice Rehnquist contested the application of the 14th.
Nixon and Congress Respond
President Nixon was not pleased with the Furman decision and pushed Congress to pass a substitute federal death penalty to address the Supreme Court’s objections. Heading up this effort in the Senate was Roman Hruska (R-Neb.) who brought forth a bill restoring the death penalty for treason and murder as well as if a death occurred because of kidnapping, hijacking, escape from custody, and blowing up public buildings (Weaver). The bill passed the Senate 54-33 on March 13, 1974, with Democrats splitting 25-25, Republicans voting 27-8 for, and the Conservative and Independent senators both voting for. The bill got the support of all the Senate’s conservatives, many of its moderates, and even a few noted liberals such as Abe Ribicoff (D-Conn.) and Birch Bayh (D-Ind.). Also of note, Joe Biden, a longtime opponent of the death penalty, voted against and no Southern Democrats voted against. This bill, however, didn’t get through the House and a federal death penalty would not be restored until 1988.
Return of the Death Penalty
The death penalty’s support was meandering at the time of Furman, as in 1972, the death penalty’s approval among the public stood at 50%, but by 1976, absence appeared to make the heart grow fonder among the public as it stood at 66% (Politico). Although the death penalty met its demise in Georgia, it was also there it would be resurrected. In 1976, the Supreme Court ruled in Gregg v. Georgia, 7-2, that the death penalty itself didn’t constitute a violation of the 8th Amendment’s prohibition of “cruel and unusual punishment” as all states had death penalty laws at the time of its adoption and set conditions that the death penalty must meet to be constitutional, with Brennan and Marshall in dissent. Interestingly, Justices Blackmun, Powell, and Stevens would later express their regrets for the vote, coming to believe that there is no way to achieve a just death penalty law.
References
Frommer, F.J. (2022, June 29). Three justices backed the death penalty – then changed their minds. The Washington Post.
Retrieved from
https://www.washingtonpost.com/history/2022/06/29/death-penalty-furman-blackmun-stevens/
Furman v. Georgia, 408 U.S. 238 (1972). Justia.
Retrieved from
https://supreme.justia.com/cases/federal/us/408/238/
Glass, A. (2017, June 29). Supreme Court strikes down death penalty, June 29, 1972. Politico.
Retrieved from
Gregg v. Georgia, 428 U.S. 153 (1976). Justia.
Retrieved from
https://supreme.justia.com/cases/federal/us/428/153/
To Pass S. 1401. Govtrack.
Retrieved from
https://www.govtrack.us/congress/votes/93-1974/s663
Weaver, W. (1974, March 14). Death Penalty Restoration Is Voted by Senate, 54-33. The New York Times.
Retrieved from
Mad Politics: The Bizarre, Fascinating, and Unknown of American Political History 