The question presented in the case of Furman v. Georgia is a compelling one: Does the death penalty, in itself and regardless of manner of execution, constitute cruel and unusual punishment in violation of the Eight and Fourteenth Amendments In a ruling that shook the American legal system and compelled all states to reexamine their capital punishment legislation, the United States Supreme Court held that the death penalty was "arbitrary and capricious". Said Justice Potter Stewart:
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race.
Consequently, more than 600 convicted inmates had their death sentences commuted to life imprisonment. As the Supreme Court did not say that the death penalty law was unconstitutional, only that it was random in its application - and in the Furman case, would result in the killing of a mentally-challenged man - states interpreted this to mean that they could rewrite their death penalty statute so as to incorporate a set of definite and reasonable standards for courts to follow. Consequently, in 1976, these new laws were tested in the case of Gregg v. Georgia and the Supreme Court held that these laws were no longer infirm.
Of particular import to this paper is the concurring opinion of Justice Brennan wherein he opined that the death penalty law runs contrary to a growing public consciousness in contemporary society that has become unwilling to support state-sponsored executions of convicted criminals. Asserts Brennan, "And it is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out. In sum, we have made death a rare punishment today."
What Brennan appears to be stating is that a reason for considering the death penalty as arbitrary and capricious is because it is so widely rejected by the people that it has fallen into disuse as a penalty in the criminal justice system. Two things may be inferred from Brennan's statement. First is that public opinion is a valid determinant of the merit or demerit of a particular policy or proposal, and second, that public opinion indeed reflects an aversion to capital punishment.
The end result of Brennan's argumentation is good: that the death penalty is indeed arbitrary and cap