Furman, Gregg and the Four Years the Death Penalty Stopped

When the Supreme Court handed down Furman v. Georgia on June 29, 1972, the opinion of the Court itself was barely a paragraph long. It said that imposing the death penalty in the three cases before it was cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, and that the judgments were reversed. Then came the rest: nine separate opinions, one from every justice, running to more than two hundred pages. Five justices agreed on the result and on almost nothing else about why. Four dissented. Out of that splintered decision came one of the most dramatic events in American legal history. Every death penalty statute in the country was effectively void, and hundreds of people on death row learned that they would not be executed after all. For four years, it looked possible that the United States had executed its last prisoner.

In short: Furman v. Georgia (June 29, 1972) struck down the death penalty as it was then administered because it was imposed arbitrarily and, some justices said, in a discriminatory way. States responded by rewriting their laws, and on July 2, 1976, Gregg v. Georgia upheld a new system with separate sentencing hearings and guided jury discretion. Executions resumed in 1977. The arbitrariness and racial disparities Furman identified have been argued about ever since.

An accidental death in Savannah

William Henry Furman was a young Black man in Savannah, Georgia, with limited education and a history of mental health problems. In 1967 he broke into a house at night. The homeowner woke up and came to investigate. Furman, trying to flee, fired a gun; by his own account he tripped and the gun went off as he fell. The shot killed the man through a closed door.

He was tried and sentenced to death. His was not the kind of case that most people imagine when they think about who gets executed: there was no torture, no plan, no multiple victims. It was a burglary that went terribly wrong. That was part of what made it an effective vehicle for the argument his lawyers were making. If Furman could be sentenced to death while many people who committed more deliberate killings were not, what principle was the system actually applying?

His case was joined with two from other states, both involving Black men sentenced to death for rape, a crime that at the time could carry the death penalty in several Southern states.

A long campaign, then a sudden stop

Furman was the culmination of years of work by lawyers at the NAACP Legal Defense and Educational Fund, who had pursued a strategy of challenging every possible execution. They raised procedural claims in case after case, aiming to stop executions until the Court addressed the constitutional question directly.

It worked, in an unexpected sense. The last execution in the United States before Furman took place in Colorado in June 1967. For five years before the ruling, as legal challenges piled up, no one was executed anywhere in the country. Death sentences kept being handed down, and death rows grew, but the machinery had stalled.

That gave the justices a strange context. They were not deciding whether to stop executions that were happening; they were deciding whether to restart a system that had already halted.

Nine opinions, five votes

The five justices in the majority took different paths.

Justices William Brennan and Thurgood Marshall concluded that the death penalty was unconstitutional in all circumstances. Brennan argued that it was inconsistent with human dignity. Marshall, the former civil rights lawyer, argued that it was excessive and that Americans, if fully informed about how it worked in practice, would reject it.

The other three in the majority were narrower. Justice William O. Douglas emphasized that the death penalty was being applied in a discriminatory way, falling on the poor, the powerless and racial minorities. Justice Byron White argued that it was imposed so rarely, compared with the number of eligible crimes, that it no longer served any meaningful purpose of deterrence or retribution.

Justice Potter Stewart wrote the line people remember. The death sentences in these cases, he wrote, were "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Out of all the people convicted of crimes as bad as these, only a random few were sentenced to death. That randomness, he argued, was itself a constitutional violation.

The four dissenters were the four justices appointed by President Richard Nixon: Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell and William Rehnquist. They argued that the Constitution itself contemplates capital punishment, that the question belonged to legislatures, and that the majority was substituting its own moral views for those of the public. Blackmun wrote that, as a legislator, he would oppose the death penalty, but that as a judge he could not find it unconstitutional.

California got there first, briefly

One of the odder footnotes of 1972 is that the most famous death row prisoners in the country were spared not by Furman but by a state court a few months earlier. In February 1972, in People v. Anderson, the California Supreme Court held that the death penalty violated the state constitution's ban on cruel or unusual punishment. The ruling commuted the sentences of everyone on California's death row, a group that included Charles Manson and Sirhan Sirhan, the man convicted of assassinating Robert F. Kennedy.

California voters answered that November with a ballot measure amending the state constitution to restore capital punishment. The episode was a preview of what would happen nationally: a court decision against the death penalty, followed by a swift political response from voters and legislators who wanted it back.

The California story also shows how much the death penalty debate has always involved two separate questions. One is constitutional: what do the words "cruel and unusual" forbid? The other is democratic: what do voters want? Courts answer the first; elections answer the second. In 1972 the two collided at both the state and national level within a few months, and in both places the democratic response was fast and decisive.

Four years of rewriting

Because only Brennan and Marshall had said that the death penalty was unconstitutional in every case, the rest of the country read Furman as an instruction rather than an abolition. The problem, as Douglas, Stewart and White described it, was how the penalty was imposed. Fix the process, and it might survive.

Legislatures moved quickly. Florida was among the first to pass a new law, within months of the ruling. Within four years, some thirty-five states had enacted new capital statutes. Public opinion supported them; polls in the years after Furman showed rising support for the death penalty.

States tried two different approaches.

Mandatory death sentences. If the problem was jury discretion, some states reasoned, remove it: make death the automatic penalty for certain crimes such as first-degree murder.

Guided discretion. Other states kept juries' discretion but tried to channel it. They split capital trials into two phases, one to decide guilt and a second to decide punishment. At the sentencing phase, juries would weigh specific aggravating factors listed in the law, such as killing a police officer or killing during another serious felony, against mitigating factors about the defendant and the crime. State supreme courts would review every death sentence to compare it with others.

July 2, 1976

The Court took up five of the new laws together and announced its decisions on July 2, 1976.

In Gregg v. Georgia, by a vote of seven to two, it upheld Georgia's guided-discretion statute. Troy Gregg had been convicted of murdering two men who had given him a ride. A plurality opinion written jointly by Justices Stewart, Powell and John Paul Stevens concluded that the death penalty is not unconstitutional in itself, and that a system with a separate sentencing hearing, defined aggravating circumstances and automatic appellate review addressed the arbitrariness that Furman had condemned. The Court upheld laws from Florida and Texas the same day.

It also struck down the mandatory approach. In Woodson v. North Carolina and Roberts v. Louisiana, the Court held that automatic death sentences were unconstitutional, because they did not allow consideration of the individual defendant and the circumstances of the crime. The Eighth Amendment, the plurality said, requires individualized sentencing in capital cases.

Brennan and Marshall dissented in Gregg, maintaining that the death penalty was always unconstitutional. For the rest of their careers they dissented from every death sentence the Court allowed.

On January 17, 1977, Utah executed Gary Gilmore by firing squad. Gilmore had dropped his appeals and insisted on his own execution. It was the first execution in the United States in nearly ten years.

Did the fix work?

The deeper question is whether the system Gregg approved actually solved the problem Furman identified. Here the record is sobering.

In McCleskey v. Kemp (1987), a Black man sentenced to death in Georgia presented a major statistical study, by the researcher David Baldus and colleagues, showing that defendants accused of killing white victims were much more likely to receive death sentences than those accused of killing Black victims, even after accounting for many other factors. The Court, in a five-to-four opinion by Justice Powell, accepted the study for purposes of argument but ruled that general statistical patterns could not prove that a particular defendant was the victim of discrimination. To hold otherwise, Powell wrote, would call the entire criminal justice system into question. After he retired, Powell told his biographer that if he could change one vote, it would be his vote in McCleskey.

In 1994, near the end of his career, Justice Blackmun, who had dissented in Furman, announced in a dissent in Callins v. Collins that he had concluded the effort to administer the death penalty fairly had failed. "From this day forward," he wrote, "I no longer shall tinker with the machinery of death."

The Court also narrowed who can be executed. It ruled out the death penalty for the rape of an adult woman in 1977, for people with intellectual disabilities in 2002, for people under eighteen at the time of their crime in 2005, and for the rape of a child where the victim did not die in 2008.

Meanwhile, the exoneration of people sentenced to death, many through DNA evidence, raised another problem that neither Furman nor Gregg had considered: the possibility of executing an innocent person.

The case for capital punishment, and our answer

Supporters of the death penalty make several arguments, and they deserve to be stated plainly. Some crimes are so terrible, they argue, that death is the only just response, and the families of victims are entitled to see that justice done. The Constitution's text refers to "life" and "capital" crimes in ways that assume executions may occur. Democratic majorities in many states continue to support it, and the question should be theirs to decide.

Those are serious positions held by thoughtful people, including many who have lost someone to murder.

Our answer, offered as argument, starts where Furman did. A punishment that cannot be reversed must be imposed with a precision the system has never achieved. Fifty years after Gregg, who gets a death sentence still depends heavily on the county where a crime occurs, the resources of the defense, and the race of the victim. Innocent people have been sentenced to death and later freed. The lightning Stewart described still strikes at random. Life without parole protects the public, punishes severely and leaves room to correct a mistake.

Where it stands now

The death penalty remains legal in many states and in the federal system, though a growing number of states have abolished it, and several others have formal or informal moratoriums. Death sentences and executions fell substantially from their peak in the late 1990s.

The federal government resumed executions in 2020, during President Trump's first term, after a long pause. In December 2024, President Biden commuted the death sentences of 37 of the 40 people on federal death row to life without parole. The Trump administration has since moved to seek federal death sentences again. Those decisions will continue to shape the federal docket, and challenges to execution methods and procedures remain before the courts.

What you can do

• Follow the Court's capital cases. The Supreme Court still decides questions about who can be executed and how. Read its opinions and summaries on our Supreme Court tracker, which also follows the emergency docket where many last-minute execution appeals end up.
• Ask your state legislators where they stand. Most death penalty law is state law. Our representatives page lets you find your state legislators and their contact information.
• Support legal defense and innocence work. Capital defense and post-conviction projects rely on donations and volunteers. Find groups through our organizations directory under justice reform and legal aid.
• Read the history. The four years between Furman and Gregg are a reminder that a constitutional question can open and close quickly. Our the courts topic page collects coverage of how the justices handle these questions today.

The Court's two decisions bracketed a short window in which the country stopped executing people and had to decide whether to start again. It chose to start. Whether it chose well is still being argued, case by case, in courtrooms where the questions from 1972 have never quite gone away.