Faculty of law blogs / UNIVERSITY OF OXFORD

Fifty Years of a Broken System: The US Death Penalty at the 50th Anniversary of Furman v. Georgia


Frank Baumgartner
Professor of Political Science, UNC-Chapel Hill


Time to read

8 Minutes

On 29 June 1972 the US Supreme Court invalidated all existing death sentences in the nation, effectively emptying the various state death rows and removing approximately 700 individuals from the threat of execution.[1] As we mark 50 years since abolition, it seems appropriate to ask whether Furman achieved its goals. The majority opinions in Furman laid out a series of flaws that justified declaring the penalty unconstitutional, and the minority opinions painted a way forward for the states to re-establish the penalty in a manner that might be constitutionally acceptable. As early as December 1972, one state had already re-written its law to reestablish the death penalty in a way that it hoped the Court would approve, and most states followed in the next two years. By 1976, the “new and improved” death penalty was sanctioned by the Court in Gregg v. Georgia,[2] and by 1977 executions had resumed. Did the “new and improved” system address the flaws that were enumerated by the Justices in Furman?

First, let’s be clear about the speed and the force with which the death penalty returned in the US following the Furman decision. Whereas public opinion had been at a low point in the period leading up to the decision, the political response to the decision[3] was swift, particularly[4] in the Southern states.[5] For approximately 20 years following the decision, until the mid-1990s, the death penalty saw increasing use. By 1986 there were more than 300 death sentences imposed in a single year, and these numbers stayed high for about a decade. Executions reached a peak of 98 in 1999. Overall, more than 8,700 individuals have been sentenced to death, and 1,547 executed. (I should note that America has seen at least one million homicides since 1972.)

Second, let’s note that the “modern” system is quite different from its historical antecedent.[6] By the doctrine that “death is different,” the Court has accepted or imposed a wide range of procedural safeguards available only to those facing the penalty of death, not lesser sentences (even life without parole). This includes enhanced indigent defense resources but particularly involves the automatic right to review by appellate courts through the state supreme court and direct review by the federal court system. These procedures have been contested, of course, and the federal government moved to weaken many in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Still, the notion that “death is different” remains accurate; those facing a death sentence or under sentence of death have procedural rights that others do not.

The Long-standing Problems: Capriciousness, Race, Deterrence

U.S. Supreme Court Justice Thurgood Marshall
US Supreme Court Justice Thurgood Marshall (1908-1993), a member of the majority in the Furman v. Georgia decision. Photo credit: Library of Congress.

The Justices laid out a number of reasons for eliminating the death penalty in the majority opinions in 1972, including these: it was arbitrary and capricious (“like being struck by lightning”); it was racially biased; it failed to deter. Is the new system better on these grounds? The arbitrary nature of the death penalty certainly has not been done away with. The biggest predictor of being executed for the crime of murder is doing that crime in Houston, Texas in the mid-1990s. There are over 2,500 independent district attorney’s offices in the US, and some of them have invested in staff and experience with the arcane law of capital punishment; most have not. The jurisdictions that have previously sentenced to death are much more likely to do so again in the future; there is little to suggest that the capricious nature of the death penalty has been significantly ameliorated since Gregg, in spite of its requirement of proportionality review.

Racial bias against defendants of coloragainst those with white victims (particularly white female victims) was a problem for the Justices in Furman, and it remains at least as significant a problem in the modern system.

The deterrent value of capital punishment was contested by the Justices in Furman, with strong arguments in favor of this concept presented to the Justices in Gregg to validate the newly revised laws. Today there is no longer any doubt about the deterrent value of the death penalty; there is no evidence for it. (Some of this may be due to the spread of the “new death penalty” in the form of life without the possibility of parole, now a legally valid punishment in every state with capital punishment also on the books.)

New Problems: Innocence, Reversals, Delays, Botches, LWOP, Cost, Rarity of Use

It may indeed be ironic that the complicated legal structures put in place after Furman, presumably designed to ensure that the death penalty would be targeted solely at the most deserving killers in the most heinous crimes, have not worked. They have solved none of the major problems that the Justices noted in that landmark ruling. But the situation is worse than that. New problems, including innocence, a high rate of reversal, long time delays on death row before reversal or possible execution, botched executions, justifying as somehow more moderate the extreme punishment of life without parole, concerns about cost, and finally decreasing social acceptance and use of capital punishment have added defects and to the modern system that even the flawed pre-Furman system did not exhibit.

Innocence has been a problem with the US capital punishment system at least since the 1692 prosecution and later execution of supposed witches in Salem, Massachusetts; in 1932, Edwin Borchard published a book-length review of the problem documenting 65 cases of wrongful conviction.[7] Currently, the Death Penalty Information Center lists 189 individuals removed from death row because of innocence in the period since Furman. The public has become increasingly aware of this problem and it has transformed public opinion. It is one thing, after all, to support the abstract concept of capital punishment, particularly when mainstream religious traditions in the US teach its moral acceptability. It is quite another to accept that the government might get things wrong and execute the wrong person. The “discovery of innocence”[8] was a discovery of something that was always in front of us, but it has nonetheless transformed the debate on the death penalty.

James Liebman and colleagues have documented that over 70% of all death sentences, so solemnly issued by judges, are later found to have been obtained by trials so flawed that the results are tossed out, new trials are ordered, and individuals see their sentence of death reduced to a lesser sentence. That’s right: 70% of death sentenced are followed by: “Oops, not really.” While it may be reassuring that there is such intense review of these cases, as mandated in the modern system, the fact that such a high percentage of death sentences are thrown out is clearly troubling.

Clarence Lackey was sentenced to death in Texas in 1978; in 1994 he suggested that 17 years on death row with no execution was a form of torture not allowed in the Constitution; the US Supreme Court disagreed. [9] But since Lackey v. Texas, these delays have only grown more extreme; it is no longer uncommon for individuals in their 60s to be executed for crimes they committed while in their 20s.[10]

Every generation seeks to find a more humane and civilized method of putting its citizens to death. We have moved from the gallows to the newfangled electric chair just at the time when electricity was coming into widespread use; gruesome results ensued, but the electric chair had a long period of usage. The gas chamber was next, but its association with the Nazi death camps created issues. Finally, we have had lethal injection,[11] the predominant method of execution in the modern period, but one that increasingly has been subject to litigation. Because of these issues states have resorted recently to the firing squad, a method of death that has the merit of clarity: it seeks in no way to hide the violent nature of the punishment in the way that lethal injection appeared to do.

A powerful argument against the death penalty is that the individual to be sentenced could instead face the “lesser” penalty of life without parole. Capital punishment opponents in fact have engaged in a kind of Faustian bargain, promoting this alternative form of punishment by death because of the expectation that it might sway some jurors or some prosecutors to be willing to eschew the death penalty in this or that case. They were correct. But the widespread use of life without parole, even for those who are juveniles at the time of their crime, is a moral issue that can be thought of as a collateral consequence of the US capital punishment system.

Before Furman, the death penalty was surely a less expensive option than a lengthy prison sentence; this is no longer the case. New Jersey spent $250 million on a death penalty system that was in place for decades but which led to the execution of only a single person. California’s system has been estimated to have cost over $4 billion; it has generated 13 executions in the 50 years since Furman. These are not unusual estimates; every study published in recent decades has shown elevated costs for capital punishment. These facts, combined with the high reversal rates, innocents on death row, and the lack of clarity about whether the penalty is being reserved for the “worst of the worst” have even led to a new development: Conservatives against the death penalty. The death penalty, it seems, does not fit the libertarian ideology that the government should be as modestly sized and least powerful as possible.

Finally, the death penalty is falling out of fashion. In the mid-1990s there were sometimes over 300 death sentences annually. It has been below 200 since 2001, below 100 since 2011, and below 50 since 2015. As the overall numbers decline, so the penalty becomes more and more concentrated in only a few states and counties. Eventually this may become a major constitutional issue. If only Texas is executing, or just Texas and Oklahoma, is such a system permissible?

No Judicial Remedy at the US Supreme Court

To be clear, very few involved in capital litigation in the US expect the new US Supreme Court majority to do anything but attempt to expand and liberalize the death penalty system. A legal strategy focusing on the Court ended when Hilary Clinton lost to Donald Trump in 2016. At the time it had appeared quite feasible; one more appointment would likely have cemented an anti-death penalty majority on the Court ready to follow Justice Breyer’s call in Glossip v. Gross[12] for a “full briefing on a more basic question: whether the death penalty violates the Constitution.” What a difference an election makes.

Today, the death penalty remains in sharp decline despite its continued use, legal status, and clear support by a large majority of the US Supreme Court. Fifty years after the Court invalidated a system that, by my reckoning, was not even as flawed as the current one, recent changes to the composition of the Court mean that this Court is very likely to seek to expand the death penalty rather than restrict it, no matter the flaws. Advocates for reform will have to find other avenues. These are readily available in various state legislatures: Colorado, Connecticut, Delaware, Illinois, Maryland, New Hampshire, New Jersey, New Mexico, New York, Washington, and Virginia have all abolished in recent years, and California, Oregon, Pennsylvania, and the US federal system have moratoria on executions. A system that came back in 1973 with a vengeance seems to be going away with a whimper. Good riddance.

Frank R. Baumgartner holds the Richard J. Richardson Distinguished Professorship in the Department of Political Science at the University of North Carolina at Chapel Hill.


[1] Furman v. Georgia 408 US 238 (1972) (US Supreme Court).

[2] 428 US 153 (1976) (US Supreme Court).

[3] David Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition (Belknap Press 2012).

[4] Carol Steiker and Jordan Steiker, Courting Death: The Supreme Court and Capital Punishment (Belknap Press 2016).

[5] Evan Mandery, A Wild Justice: The Death and Resurrection of Capital Punishment in America (W.W. Norton 2014).

[6] Frank Baumgartner, Marty Davidson, Kaneesha Johnson, Arvind Krishnamurthy and Colin Wilson, Deadly Justice: A Statistical Portrait of the Death Penalty (OUP 2017).

[7] Edwin Montefiore Borchard, Convicting the Innocent: Sixty-five Actual Errors of Criminal Justice (Garden City Publishing Company 1932).

[8] Frank Baumgartner, Suzanna De Boef and Amber Boydstun, The Decline of the Death Penalty and the Discovery of Innocence (CUP 2008).

[9] Lackey v. Texas 514 US 1045 (1995) (US Supreme Court).

[10] Baumgartner et al., Deadly Justice.

[11] Austin Sarat, Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford University Press 2014).

[12] 576 US _ (2015) (US Supreme Court).