From Furman to Gregg

In Furman v. Georgia, 408 U.S. 238 (1972), the Court found that all existing capital punishment schemes violated the Eighth Amendment.1  While the Furman Court "did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments," Gregg v. Georgia, 428 U.S. 153, 188 (1976), it did recognize that "the penalty of death is different in kind from any other punishment imposed under our system of criminal justice."  Id.  Because of its uniqueness, the death penalty can not be imposed under sentencing procedures that "create a substantial risk that it [will]. . .be inflicted in an arbitrary and capricious manner."  Id.  Because the Court found that the capital sentencing procedures then being utilized did create such a risk, the Furman Court invalidated those procedures as incompatible with contemporary standards of decency.2 

To avoid creating a substantial risk of arbitrary and capricious infliction of the death penalty, capital sentencing schemes since Furman have been required to meet "twin objectives:" to be "at once consistent and principled but also humane and sensible to the uniqueness of the individual."  Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).  In Gregg v. Georgia, supra, and its companion cases,3 the Court determined that these twin objectives are "best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." 428 U.S. at 195.4  The guidance is sufficient only if it "channel[s] the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.'"  Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (quoting Gregg v. Georgia, 428 U.S. at 198.)  Moreover, the process must accord proper significance to the "relevant facts of the character and record of the individual offender," especially the "compassionate or mitigating factors stemming from the divers-frailties of human kind."  Woodson v. North Carolina, 428 U.S. 280, 304 (1976).  While some have noted the tension between the central principles of guided discretion and individualized consideration, see Walton v. Arizona  , 497 U.S. 639, 669-73 (1990) (Scalia, J., dissenting), the tension is justified on the ground that both principles are necessary elements in "a moral inquiry into the culpability of the defendant."  California v. Brown, 479 U.S. 538, 544 (1987).

 1 For a history of the litigation culminating in Furman, see Meltsner, Cruel and Unusual.

 2 Prior to Furman, most jurisdictions utilized "unitary" proceedings in capital cases.  In other words, the jury determined the defendant's guilt-or-innocence in conjunction with the question whether the defendant should be sentenced to death.  The issues were not bifurcated.

 3  See Proffitt v. Florida  , 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 242 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976).

 4 Compare McGautha v. California  , 402 U.S. 183 (1971).