Inferring and Explaining

123 e 7 . furman V. georgIa 408 u.s. 238 (1972) Te case of Furman v. Georgia was unusual in many respects. It initiated the one and only time in our nation’s history when the death penalty was determined to be unconstitutional. It was an exceedingly close (5 to 4) ruling, with the fve justices in themajority so at odds about why cap- ital punishment was cruel and unusual punish- ment that the Court issued a rare pur curium (by the court) instead of the standard opinion of the Court authored by one or more of the justices. Still, most legal analysts see the case as raising the same issues as McGautha , only phrased as an Eighth Amendment concern rather than a FourteenthAmendment due process one. Justice Stewart’s reasoning is the most ofen seen as the relevant precedent. Tese death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously . . . selected random handful upon whom the sentence of death has in fact been imposed. My concurring Broth- ers have demonstrated that, if any basis can be dis- cerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. . . . But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot toler- ate the infiction of a sentence of death under legal systems that permit this unique penalty to be so wan- tonly and so freakishly imposed. e 8 . gregg V. georgIa 428 u.s. 153 (1976) Te Gregg v. Georgia case did three things, two of which were to the dismay of death penalty abolitionists like your author. Perhaps most sig- nifcantly, it ruled that capital punishment was not, per se , cruel and unusual punishment under the Eighth Amendment. It also ruled that new sentencing procedures initiated afer Furman had successfully eliminated the problem of arbi- trary and capricious administration of the death penalty in Georgia. But, and this is crucial to my argument, it reinforced the basic fnding of Furman (in many respects, this is unsurprising, since the opinion was written by Justice Stew- art who was quoted previously). Justice Stewart quotes both himself and Justice White. While Furman did not hold that the infiction of the death penalty per se violates the Constitution’s ban on cruel and unusual punishments, it did recognize that the penalty of death is diferent in kind fromany other punishment imposed under our system of criminal justice. Because of the uniqueness of the death pen- alty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inficted in an arbitrary and capri- cious manner. MR. JUSTICE WHITE concluded that “the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” . . . Indeed, the death sentences examined by the Court in Furman were “cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capi- tal crimes], many just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . Te Eighth and FourteenthAmendments cannot tolerate the infiction of a sentence of death under legal systems that permit CaPItal PunIshment and the ConstItutIon