Public Opinion and the Death Penalty

Abstract

In Furman v. Georgia' the United States Supreme Court, in a 5 to 4 per curiam decision, held that the death penalty as then administered violated the eighth amendment prohibition of and punishment. Justices Brennan and Marshall would have held that the death penalty was cruel and unusual per se, but Justices Douglas, Stewart, and White based their concurring decisions on the more limited grounds that the death penalty was unconstitutional because it was applied in a sporadic, capricious, arbitrary, or unfairly discriminatory way.2 Thus, although the Furman decision effectively voided the death sentences of 63I persons on death row in 32 states,3 it left open the possibility that capital punishment would be acceptable if its inequities and arbitrary application were corrected. Such an equitable capital punishment law would eliminate discretion in sentencing by making the death penalty mandatory for all persons convicted of capital crimes or would severely limit discretion by providing strict standards specifying the conditions under which the death penalty must or must not be imposed.4 Since Furman, many states have enacted legislation aimed at restoring the death penalty in conformity with these criteria, two have reinstated it by judicial review,5 and legislation is pending in a number of other legislatures, including Congress. As of March 15, I974, there were already 72 persons awaiting execution on death rows in various states.6 Future litigation on the death penalty seems assured and it

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