Last updated on: 12/22/2009 | Author:

Furman v. Georgia

Jackson v. Georgia
Branch v. Texas
Decided on June 29, 1972; 408 US 238

The imposition and carrying out of the death penalty was held to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments because the decision was left to the uncontrolled discretion of judges or juries and was done in “an arbitrary, discriminatory, and capricious manner.”



A. Issues Discussed: Death penalty

B. Legal Question Presented:

Does the imposition and carrying out of the death penalty in these three cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?


A. Background:

In the Furman case:

“The victim surprised Furman in the act of burglarizing the victim’s home in the middle of the night. While escaping, Furman killed the victim with one pistol shot fired through the closed kitchen door from the outside. At the trial, Furman gave his version of the killing:

‘They got me charged with murder and I admit, I admit going to these folks’ home and they did caught me in there and I was coming back out, backing up and there was a wire down there on the floor. I was coming out backwards and fell back and I didn’t intend to kill nobody. I didn’t know they was behind the door. The gun went off and I didn’t know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That’s all to it.’

The Georgia Supreme Court accepted that version:

‘The admission in open court by the accused…that during the period in which he was involved in the commission of a criminal act at the home of the deceased, he accidentally tripped over a wire in leaving the premises causing the gun to go off, together with other facts and circumstances surrounding the death of the deceased by violent means, was sufficient to support the verdict of guilty of murder…’

About Furman himself, the jury knew only that he was black and that, according to his statement at trial, he was 26 years old and worked at ‘Superior Upholstery.’ It took the jury one hour and 35 minutes to return a verdict of guilt and a sentence of death.”

In the Jackson case:

“Jackson, a black, convicted of the rape of a white woman, was 21 years old. A court-appointed psychiatrist said that Jackson was of average education and average intelligence, that he was not an imbecile, or schizophrenic, or psychotic, that his traits were the Product of environmental influences, and that he was competent to stand trial.

Jackson had entered the house after the husband left for work. He held scissors against the neck of the wife, demanding money. She could find none and a struggle ensued for the scissors, a battle which she lost; and she was then raped, Jackson keeping the scissors pressed against her neck. While there did not appear to be any long-term traumatic impact on the victim, she was bruised and abrased in the struggle but was not hospitalized.

Jackson was a convict who had escaped from a work gang in the area, a result of a three-year sentence for auto theft. He was at large for three days and during that time had committed several other offenses – burglary, auto theft, and assault and battery.”

In the Branch case:

“Branch, a black, entered the rural home of a 65-year-old widow, a white, while she slept and raped her, holding his arm against her throat. Thereupon he demanded money and for 30 minutes or more the widow searched for money, finding little. As he left, Jackson said if the widow told anyone what happened, he would return and kill her. The record is barren of any medical or psychiatric evidence showing injury to her as a result of Branch’s attack.

He had previously been convicted of felony theft and found to be a borderline mental deficient and well below the average IQ of Texas prison inmates. He had the equivalent of five and a half years of grade school education. He had a ‘dull intelligence’ and was in the lowest fourth percentile of his class.”

On certiorari, the US Supreme Court reversed the judgment of the Supreme Court of Georgia.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Anthony G. Amsterdam argued the cause for petitioner. With him on the brief were B. Clarence Mayfield, Michael Meltsner, Jack Greenberg, James M. Nabrit III, Jack Himmelstein, and Elizabeth B. DuBois.

Paul Raymond Stone filed a brief for the West Virginia Council of Churches et al. as amici curiae urging reversal. John E. Havelock, Attorney General, filed a brief for the State of Alaska as amicus curiae. Briefs of amici curiae were filed by Gerald H. Gottlieb, Melvin L. Wulf, and Sanford Jay Rosen for the American Civil Liberties Union; by Leo Pfeffer for the Synagogue Council of America et al.; by Chauncey Eskridge, Mario G. Obledo, Leroy D. Clark, Nathaniel R. Jones, and Vernon Jordan for the National Association for the Advancement of Colored People et al.; by Michael V. DiSalle for Edmund G. Brown et al.; and by Hilbert P. Zarky and Marc I. Hayutin for James V. Bennett et al.

Dorothy T. Beasley, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, and Andrew J. Ryan, Jr.

Theodore L. Sendak, Attorney General, and David O. Givens, Deputy Attorney General, filed a brief for the State of Indiana as amicus curiae urging affirmance.


The Court limited its review of these three cases, one murder and two rape cases, to the question presented.

“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 US Supreme Court reversed the Supreme Court of Georgia judgment.

Justice Vote: 5 Pro vs. 4 Con

  • Marshall, T. Pro (Wrote per curiam opinion)
  • Douglas, W. Pro (Wrote per curiam opinion)
  • Brennan, W. Pro (Wrote per curiam opinion)
  • Stewart, P. Pro (Wrote per curiam opinion)
  • White, B. Pro (Wrote per curiam opinion)
  • Burger, W. Con (Wrote dissenting opinion)
  • Blackmun, H. Con (Wrote dissenting opinion)
  • Powell, L. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Wrote dissenting opinion)

The ACLU, as amicus curiae, urged reversal of the judgment of the Supreme Court of Georgia; the Supreme Court reversed in a 5-4 vote, giving the ACLU an apparent win.