Class 2: The Supreme Court Declares the Death Penalty Unconstitutional (Then Upholds it 4 Years Later)

After rejecting a challenge to the death penalty based on a denial of due process in 1971, the Supreme Court declared capital punishment unconstitutional in 1972 in the case of Furman v. Georgia. Five members of the Court found that the penalty was “cruel and unusual” in violation of the Eighth Amendment to the Constitution, although each of the five justices had different reasons for reaching that conclusion. The other four members of the Court dissented, finding the death penalty constitutional. Many states responded by passing new death penalty laws. They took different approaches in trying to eliminate the constitutional defects identified in Furman. In 1976, the Court ruled on the statutes adopted by five states, holding some of them constitutional and others unconstitutional. The decisions of the Court in the five cases continue to shape the way death is applied by states and federal government.

A. Challenges to the Death Penalty Leading to it Being Declared Unconstitutional

This segment analyzes the Supreme Court’s rejection of a challenge to the death penalty based upon a denial of due process in 1971, and it decision in Furman v. Georgia the following year declaring capital punishment violates the Constitution’s prohibition of “cruel and unusual” punishment.]


McGautha-Furman (PDF), including:

    • Decline in the use of the Death Penalty in the 1940s, 50s and 60s
    • Tables: Executions in the United States by year and average for five-year intervals, 1935-69, Executions in five-year intervals for four regions of the United States, 1935-69, Executions by regions, 1977 through 2005, Executions in five-year intervals for Southern states performing over 100 executions from 1930 to 1969, and total executions by those states from 1977 to 2005
    • Capital Punishment in the Rest of the World
    • Maxwell v. Bishop, 398 F.2d 138 (1968)
    • McGautha v. California, 402 U.S. 183 (1971)
    • The Eighth Amendment
      • Wallace Wilkerson’s Challenge to the Firing Squad, 
Wilkerson v. Utah, 99 U.S. 130 (1878)
      • William Kemmler’s Challenge to the Electric Chair, 
In re Kemler, 136 U.S. 436 (1890)
      • Weems v. United States, 217 U.S. 349 (1909)
      • Louisiana’s Efforts to Execute Willie Francis
      • Trop v. Dulles, 356 U.S. 86 (1958)
      • Furman v. Georgia, 408 U.S. 238 (1972)
      • The Impact of Furman


B. The Court’s 1976 Cases

This segment examines the Supreme Court’s decisions regarding the newly-adopted death penalty statutes of five states in 1976. It upheld the statutes adopted by Georgia, Florida and Texas, finding they provided for considering various factors in deciding whether to impose death in order to avoid the “unusual” or arbitrary infliction of death. The Court struck down the statutes of North Carolina and Louisiana, which provided for a mandatory death penalty upon conviction of certain crimes.


– 1976 Decisions (PDF), including:

    • Gregg v. Georgia, 428 U.S. 153 (1976)
    • Proffit v. Florida, 428 U.S. 242 (1976)
    • Jurek v. Texas, 428 U.S. 262 (1976)
    • Woodson v. North Carolina, 428 U.S. 280 (1976)
    • Roberts v. Louisiana, 428 U.S. 325 (1976).

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