Supreme Court Rules Death Penalty Unconstitutional

The death penalty has long been a contentious issue in America, and remains so today. Capital punishment’s morality, legality, effectiveness in preventing crime, and methods of execution continue to spark passionate debate. On June 29, 1972, the U.S. Supreme Court entered the fray by ruling, in a narrow, difficult 5-4 decision (Furman v. Georgia), that the death penalty was unconstitutional because it violated the Eighth Amendment’s prohibition against cruel and unusual punishment. This decision halted all executions in the United States for four years.

The difficulty of the Court’s decision is reflected in the nine different opinions the justices wrote. Of the majority, only three of the five justices seemed to think capital punishment was wrong—the other two were concerned that it was applied unevenly. The four dissenters discussed the long-established use of capital punishment in the nation’s history, and asserted that the death penalty decision exceeded the Court’s authority.

Chief Justice Warren E. Burger, one of the dissenters, pointed out that the Court’s decision seemed to leave a loophole for state legislatures to rewrite their death penalty laws to make them constitutional, and many states busily took on this task. In 1976 another Supreme Court decision ruled that a death sentence could be imposed if its imposition was the result of a separate hearing by the jury, following the jury’s finding that the accused was guilty. Executions resumed in the United States, with the first being the killing by firing squad of Gary Gilmore in Utah on Jan. 17, 1977.

The following three newspaper articles were published the day the Supreme Court announced its death penalty decision. The first article is a news account of the Court’s ruling, the second is about New Jersey’s reaction. The third, from a Seattle paper, discusses nine death row inmates whose impending executions were suddenly voided.

This copyrighted article was published by the Evening Times (Trenton, New Jersey) on June 29, 1972:

Top Court Voids Death Sentence

Washington (AP)—The Supreme Court held 5 to 4 today that the death penalty, as it is now used in the United States, violates the Constitution and cannot be imposed.

While the decision leaves the door open for legislatures to reinstate capital punishment in some circumstances, one of the nine opinions issued by the court said the immediate result is to remove the death sentences from the 600 condemned inmates across the land.

All nine justices filed statements of their views. In the majority were Justices William O. Douglas, William J. Brennan Jr., Thurgood Marshall, and with some reservations, Potter Stewart and Byron R. White. Dissenting were the four Nixon administration appointees, Chief Justice Warren E. Burger and Justices Harry A. Blackmun, Lewis F. Powell Jr. and William H. Rehnquist.

Reversed immediately by the decision were two death sentences for non-fatal rapes in Georgia and Texas and a death sentence for murder in Georgia.

Here is how the majority was formed:

Douglas concluded capital punishment is incompatible with the concept of “equal protection” of the laws. That he found to be “implicit” in the Eighth Amendment.

Brennan based his judgment primarily on the theory that the death penalty “does not comport with human dignity.” He also cited the Eighth Amendment.

Called ‘Excessive’

Marshall found capital punishment to be “morally unacceptable” and “excessive” when measured against the Eighth Amendment’s prohibition on cruel and unusual punishments.

Stewart concluded that the death penalty is now applied in a “wanton” and “freakish” manner.

White said the death penalty is invalid mostly because it is used infrequently and did not meet “any existing general need for retribution.”

Burger, in dissent, said the decision leaves legislatures free “to carve out limited exceptions to a general abolition of the penalty.” He said the court had gone “beyond the limits of judicial power,” but added “while fortunately leaving some room for legislative judgment.”

Blackmun, saying he yields “to no one in the depths of my distaste, antipathy, and indeed, abhorrence” for the death penalty, nevertheless dissented because, he wrote, “I fear the court has overstepped.”

Powell said none of the five opinions by the justices in the majority “provides a constitutionally adequate foundation for the court’s decision.” For the present, he said, the ruling “removes the death sentences previously imposed on some 600 persons awaiting punishment throughout the country.”

Rehnquist said: “The court’s judgment today strikes down a penalty that our nation’s legislators have thought necessary since our country was founded.” He said the ruling had completely disregarded “judicial self-restraint.”

The central question before the court was whether capital punishment violates the Eighth Amendment’s prohibition against “cruel and unusual punishments.”

The Evening Times (Trenton, New Jersey) also published this copyrighted article on June 29, 1972:

N.J. May Restore Penalty

By Earl Josephson, Staff Writer

New Jersey apparently has been given the constitutional leeway by the U.S. Supreme Court to selectively reinstate the death penalty.

Today’s decision seemingly clears the way for Gov. William T. Cahill’s study commission to recommend circumstances in which the penalty should be applied, or whether it should ever be applied.

Cahill has said he favors its retention only for the most heinous crimes, such as the murder of policemen, prison guards and deaths resulting from bombings and kidnapping.

The blanket New Jersey death penalty was struck down in January by the State Supreme Court, which said it was bound to do so under the terms of another U.S. Supreme Court ruling.

In that case, the U.S. Supreme Court voided a New Jersey death penalty because New Jersey’s law allowed a defendant to escape the electric chair by pleading guilty.

This was found to compromise the defendant’s rights to avoid self-incrimination and to receive a trial by jury.

The first step New Jersey must take, therefore, is to eliminate the option of pleading guilty or possibly to hold a separate trial on the issue of punishment.

It is at least the opinion of Chief Justice Warren Burger that the court’s decision leaves room for states to carve out limited exceptions in which it would retain capital punishment.

He noted that two “pivotal” concurring opinions “turn on the assumption that it is the application of the death sentence in a random and unpredictable manner” which makes it cruel and unusual punishment.

One bill before the Legislature would reinstate the death sentence only for murders of policemen, prison guards, for murders committed during an escape and for a second murder committed by the same person. Another bill would add murders committed for hire, or of exceptionally vicious or depraved nature.

The State Senate has voted to reinstate the death sentence for all grounds but the felony murder circumstance, in which all persons participating in a crime are liable if one of the accomplices commits a homicide.

This copyrighted article was published by the Seattle Times (Seattle, Washington) on June 29, 1972:

Death Penalty Ruling: Sighs Greet Row 6 ‘Execution Order’

By Don Hannula

A feeling of relief ran through death row at the Washington state penitentiary at Walla Walla at 8 a.m. today.

That was the time Sgt. Robin Moses, the guard in charge, told the nine men on death row of the United States Supreme Court’s 5-4 decision to outlaw the death penalty.

Supt. B. J. Rhay said he heard the news on the radio while driving to the penitentiary at 7:45 a.m. and told Sergeant Moses to notify the men.

“They were very relieved about it and wanted to get in touch with their lawyers immediately,” Rhay said.

Rhay said he would have to see [the] court decision before deciding on transferring the men from death row and closing it down.

Last December all nine told a Times reporter they did not believe they ever would be hanged because there had not been an execution in this state since 1963 and Gov. Don Evans was a strong opponent of capital punishment.

But they said the lingering possibility haunted them.

All nine are convicted murderers, six from King County and three from Pierce County. They are:

—John  Dwight Canaday, 27, convicted in King County of abducting and strangling two young Seattle women, raping one of them and attempting to rape another.

—David Washington Riggins, 25, convicted in King County of robbing and strangling a 60-year-old woman in her Central Area home and of shooting to death a 54-year-old man after robbing him in his car in Seattle.

—Leodis Smith, 23, convicted with Riggins in the robbery and strangulation of the woman and the shooting and robbery of the man.

—Joseph Dwight Cerney, 3rd, 32, convicted in Pierce County of the fatal shooting of a 27-year-old man during the robbery of a grocery in Lakewood, south of Tacoma.

—John Thomas Music, 22, committed from King County for fatally shooting a 15-year-old boy in a street robbery.

—Ernest James Tyer, 42, convicted in King County of the shooting death of a 58-year-old woman in a robbery outside her Capitol Hill apartment.

—George Martin Boggs, Jr., 22, convicted in Pierce County of the beating and stabbing to death of a 51-year-old Tacoma woman and burning her house.

—Gary Lee Quinlivan, 37, convicted in King County of first-degree murder.

—Charles Vidal, 23, convicted in Pierce County of murdering a 13-year-old Tacoma boy.

Smith and Riggins have been on death row the longest—since February, 1969.

Rhay said he thought the men would go back eventually to the court of their jurisdiction and from there be sent to the State Corrections Center at Shelton to be screened for assignment to an appropriate institution.

Rhay never has expressed his opinion on the death penalty. He said he would hold to that position now.

Evans, who repeatedly asked the Legislature to abolish the death penalty, said: “I have long felt that the death penalty had not proven to be a deterrent to crime. States that have had a death penalty have not had less crime than those states that have not had it.

“While I recognize the heartbreak and tragedy of the families of victims of capital crimes, I have never believed that it was just or Christian to kill in retribution. The decision does not mean that those who are facing the death penalty will be released from our prisons or even face early release.”

Seventy-three had been executed by hanging at the state penitentiary since 1904.

The first man to die on the gallows there was James Champoux, 28, a King County farmer convicted of murder. The date was May 6, 1904.

The last man to hang at the penitentiary was Joseph Chester Self, 32, a King County laborer convicted of murder. He was hanged one minute after midnight June 20, 1963.

All 73 hanged at the penitentiary were murderers with the exception of Jack W. Marable, 40, of Thurston County, who was executed October 4, 1940, for kidnap and rape.

Originally, scaffolding was erected in the big yard of the penitentiary for hangings but in the mid-1930s a permanent gallows was installed in Wing 6—the execution chamber.

Today’s high-court decision apparently spelled the death of Wing 6.

For the full text of the Supreme Court’s 1972 death penalty decision, visit the Furman v. Georgia website provided by Cornell University Law School.