Furman v. Georgia (1972) – Guest Essayist: State Representative David Eastman

Is the Death Penalty Cruel and Unusual Punishment?

Furman v. Georgia was another 5-4 decision by the United States Supreme Court; meaning, that if any one of the nine justices on the Supreme Court had changed their mind, the result would have been very different. The case dealt with three men who had been convicted in either Georgia or Texas. Two of the men were convicted of rape. The third was convicted of murder. All three men were given the death sentence following separate jury trials. 

The three men appealed their sentences to the Supreme Court and argued that the death penalty violated the 8th Amendment, which prohibits “cruel and unusual punishments”, and the 14th Amendment, which provides that states may not deprive a person of life “without due process of law” or deny any person “the equal protection of the laws”. Because each of the men were minorities, and because the cases dealt with similar circumstances, the Supreme Court heard them as one case.

The question the court decided was more specific than simply whether the death penalty was constitutional. As four of the justices pointed out, the Constitution specifically includes the death penalty in the 5th Amendment (referred to in the Constitution as a “capital” crime). Rather, the court sought to answer the question of whether or not the death penalty had been applied fairly in the cases of the three men. In other words, had the three men been discriminated against in a way that a white person convicted of the same crime, and under the same circumstances, would not have been.

In each of the cases, the death penalty had been decided by a jury. The jury was able to impose the death penalty or impose some other penalty such as life in prison. After looking at a large number of cases, the Supreme Court concluded that, statistically, juries were more likely to give the death penalty to certain minorities “whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.”

Because juries had relative freedom on whether to assign the death penalty or not, and because wealthy defendants had access to better legal resources that could influence that freedom and thereby avoid the death penalty, the Court decided that it was unfair to apply the death penalty in these types of cases.

In ruling this type of discrimination to be unconstitutional, the Court relied upon an earlier ruling from 1958, in which it determined that the 8th Amendment to the Constitution “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” This notion allowed some members of the court to argue that the death penalty should be banned permanently, and in all cases.

The four justices who disagreed with the ruling in Furman v. Georgia pointed out that, only one year earlier, the Supreme Court had defended the very same power of juries to determine the circumstances in which a death sentence was appropriate. They also argued that, under the Constitution, the legislature was the appropriate branch of government to change the laws based on any “evolving standards of decency”.

A fundamental tenant of the Declaration of Independence is that government derives its just powers from the consent of the governed and that any power the government takes without consent is unjust. The people consent to such changes in law through their elected representatives, which they can remove or replace at the next election. There is no similar way for the people to consent to changes in law that are accomplished by the Supreme Court because justices are not elected, and are appointed to the Supreme Court for life. At least, that was the wisdom of the Founders.

When the Bill of Rights was adopted, the 8th Amendment was written to ensure that it would be illegal for the government to engage in torture. “Cruel and unusual punishment” referred to torture and other punishments which were already illegal at the time. By discovering “evolving standards of decency” within the Constitution, and then periodically updating the Constitution in keeping with those evolving standards, the Supreme Court was really borrowing power from the legislative branch of government.

In speaking for the four justices who disagreed with Furman v. Georgia, Chief Justice Burger explained that if the Supreme Court “were possessed of legislative power” he would personally be in favor of getting rid of the death penalty. But the Constitution gave all legislative power to Congress, therefore the Supreme Court did not have the authority to get rid of it.

Borrowing power from the other branches is a temptation that every branch of government has experienced at one time or another, and the Supreme Court is no exception. Because that temptation will always be present, it is important that each of the branches of government carefully guard the powers that the Constitution has delegated to them, and that the people know the Constitution and are able to quickly identify when one branch begins to encroach on the power of another.

Furman v. Georgia (1972) Supreme Court decision:
https://www.law.cornell.edu/supremecourt/text/408/238

The Honorable David Eastman is a graduate of West Point and a former Captain in the U.S. Army. He has served at each level of U.S. government; city, county, borough, state and federal, and in each case was obliged to take an oath to support and defend the U.S. Constitution; He currently serves as an Alaska firefighter and as a State Representative in the Alaska House of Representatives; He and his family live in Wasilla, Alaska.

One Response to “Furman v. Georgia (1972) – Guest Essayist: State Representative David Eastman”

  1. Publius Senex Dassault says:

    Thank you for the essay distilling it down to the essentially essence that the “government derives its just powers from the consent of the governed and that any power the government takes without consent is unjust. The people consent to such changes in law through their elected representatives, which they can remove or replace at the next election. There is no similar way for the people to consent to changes in law that are accomplished by the Supreme Court because justices are not elected, and are appointed to the Supreme Court for life. At least, that was the wisdom of the Founders,” and

    “the Supreme Court was really borrowing power from the legislative branch of government,” and

    “Borrowing power from the other branches is a temptation that every branch of government has experienced at one time or another, and the Supreme Court is no exception. Because that temptation will always be present, it is important that each of the branches of government carefully guard the powers that the Constitution has delegated to them, and that the people know the Constitution and are able to quickly identify when one branch begins to encroach on the power of another.”

    And all American living Americans said, “Amen.”

    May he/she who has ears to hear – hear.

    PSD

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