History Repeats Itself: The Post-Furman Return to Arbitrariness in Capital Punishment

Lindsey Vann

The 1972 landmark ruling in Furman v. Georgia appeared to be the end of the arbitrary imposition of the death penalty in the United States. Almost everyone around the country, including the Justices who decided Furman, believed the decision permanently invalidated America’s death penalty. Though each of the five Justices voting in the Furman majority authored individual opinions with differing reasoning, each relied on the arbitrary imposition of the death penalty in concluding the punishment was unconstitutional under the Cruel and Unusual Punishments Clause of the Eighth Amendment. The Justices in the majority had little Eighth Amendment precedent to rely upon in declaring the death penalty unconstitutional, but Furman came to be known for condemning the arbitrary imposition of the penalty. The Court’s concern that the unique punishment of death not be imposed in an “arbitrary and capricious manner” seemed to indicate the Constitution would not tolerate a system where the penalty was “so wantonly and so freakishly imposed.”

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