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January 25, 2007

More on McGautha, Furman and Gregg

As hinted in Wednesday's class, I think the constitutional and social history surrounding the rulings in McGautha, Furman and Gregg are fascinating.  Here are some links and thoughts for anyone interested in digging deeper in this little piece of important constitutional history:

McGautha (1971)

Here is a link to all the full opinons in McGautha.  As a follow-up to our class discussions, check out Justice Brennan's dissent, which includes this potent paragraph at the outset:

It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process.  For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a State's attempt to provide standards, attacked as impermissible or inadequate.  We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding through the accumulation of a variety of experiences.  We are not presented with the slightest attempt to bring the power of reason to bear on the considerations relevant to capital sentencing. We are faced with nothing more than stark legislative abdication. Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power.  Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Wo v. Hopkins, 118 U.S. 356, 366 -367, 369-370 (1886). Today we hold it adequate to license a life.

Furman (1972)

Here is a link to all the full opinons in FurmanThis on-line encyclopedia entry about Furman includes these two notable factiods about the prelude to and particulars of the case:

Ironically, the use of the death penalty declined in the 1960s.  Only two persons were executed in the United States between 1967 and the date of the Furman decision in 1972.  Public opinion polls showed that a majority of U.S. citizens were opposed to capital punishment.

Furman arose out of the convictions and death sentences of three African American men. William Henry Furman was convicted in Georgia for murder, Lucious Jackson was convicted in Georgia for rape, and Elmer Branch was convicted in Texas for rape.

Gregg (1976)

Here is a link to all the full opinons in Gregg.  Professor Michael Radelet has this recent article discussing Furman, Gregg and post-Gregg developments.  This passage explains what transpired in the four years between Furman and Gregg:

[After Furman, Florida] Governor Rubin Askew called the legislature into a special session, held in Tallahassee just after Thanksgiving, 1972.  Soon Florida had the nation's first "post-Furman" death penalty statute. Since it required that guilt and punishment decisions be held in separate proceedings, and specified factors that jurors must consider in deciding between a death and a prison sentence (e.g., the defendant's prior record; whether the murder is especially cruel), the Florida legislation is an example of what is called a "guided discretion" statute.  Within two years after Furman, fourteen other states had reacted in a different way by enacting statutes that required mandatory death sentences upon conviction for assorted types of criminal homicide.

By 1976, 35 states had passed new death penalty laws and more than 500 inmates were confined on America's death rows.  Public support for the death penalty had also grown markedly since Furman; by then some two-thirds of Americans supported it.  Clearly the Supreme Court's silence on the issue had to end.  It was time to decide whether these new, post-Furman death penalty laws were constitutional.

January 25, 2007 in Supreme Court rulings | Permalink


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Interestingly, it is Bob Woodward's book The Brethren which gives a behind the scenes look at the politics behind the Furman decision. The court gambled that the death penalty would disappear on its own if the current laws were simply invalidated. The Court wanted to avoid actually declaring the death penalty unconstitutional. Instead, since Furman left the door open, the states rushed back with new statutes to remedy the problems raised by the Furman opinions. Given this response, the Court was left with no real choice in Gregg but to start fashioning the byzantine jurisprudence that is now associated with the death penalty.

Posted by: ward | Feb 3, 2007 2:30:54 AM

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