New Research and Literature Since Furman
On 29 June 1972 the United States Supreme Court ruled that "the imposition and carrying out of the death penalty . . . constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." This decision in Furman v. Georgia and related cases was based on the way the death penalty was being administered, with trial judges and juries having unguided discretion to sentence to death or life. More than 600 persons were then under sentence of death in thirty-two states, and the effect of the Furman ruling was to insure that virtually all of those 600 would be resentenced to prison. However, the Court's narrow (five to four) majority, the absence of any plurality opinion, and the issues left unresolved guaranteed that the death penalty controversy would continue to vex the nation's criminal justice systems for years to come. Future historians may well be able to show this decision to be the watershed in the nation's long-standing controversy over capital punishment. It was especially noteworthy for the way in which complex and varied social science evidence had been presented in the briefs and arguments by the attorneys on behalf of their death row clients. As the Court's opinions showed, this evidence carried persuasive effect and provided the basic foundation for the decision.
Although many of the data accumulated found their way into the nine separate and diverse opinions written in this case, it was the showing of infrequency, arbitrariness, and discrimination in the administration of the death penalty that held together the five Justices who formed the majority. Justice Douglas observed, "One searches our chronicles in vain for the execution of any member of the affluent strata of this society." Justice Stewart commented that those under sentence of death in the United States were "a capriciously selected random handful." Justice White continued the same objection when he wrote, "There is no meaningful basis for distinguishing the few cases where [the death penalty] . . . is imposed from the many cases where it is not." Justices Brennan and Marshall concurred in these findings and also stressed a different objection: ". . . the threat of death has no greater deterrent effect than the threat of imprisonment" ( Brennan); "capital punishment cannot be justified on the basis of its deterrent effect" ( Marshall). This is but a sampling from a great wealth of dicta in Furman that shows how the social science evidence offered to the Court managed to have a powerful impact upon its reasoning.
Impressive as the ruling in Furman was, however, it was clear that it did not directly settle the issue of whether the death penalty has any place in our