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Unformatted text preview: FURMAN v. GEORGIA 408 U.S. 238 (1972) U. S. SUPREME COURT Decided June 29, 1972 PER CURIAM The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings. MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL have filed separate opinions in support of the judgments. THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST have filed separate dissenting opinions. MR. JUSTICE DOUGLAS, concurring. In these three cases the death penalty was imposed, one of them for murder, and two for rape. In each the determination of whether the penalty should be death or a lighter punishment was left by the State to the discretion of the judge or of the jury. In each of the three cases the trial was to a jury. They are here on petitions for certiorari which we granted limited to the question whether the imposition and execution of the death penalty constitute &quot;cruel and unusual punishment&quot; within the meaning of the Eighth Amendment as applied to the States by the Fourteenth. I vote to vacate each judgment, believing that the exaction of the death penalty does violate the Eighth and Fourteenth Amendments. It has been assumed in our decisions that punishment by death is not cruel, unless the manner of execution can be said to be inhuman and barbarous. In re Kemmler, 136 U.S. 436, 447. It is also said in our opinions that the proscription of cruel and unusual punishments &quot;is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.&quot; Weems v. United States, supra, at 378. A like statement was made in Trop v. Dulles, 356 U.S. 86, 101, that the Eighth Amendment &quot;must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.&quot; The generality of a law inflicting capital punishment is one thing. What may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions. It would seem to be incontestable that the death penalty inflicted on one defendant is &quot;unusual&quot; if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices.... But the debates of the First Congress on the Bill of Rights throw little light on its intended meaning. All that appears is the following: &quot;Mr. SMITH, of South Carolina, objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite....
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