Amendment 8 — Furman And Moratorium On Death Penalty

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Eighth Amendment :

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In Furman v. Georgia,[1](https://www.law.cornell.edu/constitution-conan/amendment-8/furman-and-moratorium-on-death-penalty#fn1amd8 " 408 U.S. 238 (1972). The change in the Court’s approach was occasioned by the shift of Justices Potter Stewart and Byron White, who had voted with the majority in McGautha v. California, 402 U.S. 183 (1971). ") the Supreme Court held that the death penalty, at least as administered, violated the Eighth Amendment . There was no unifying opinion of the Court in Furman; the five Justices in the majority each approached the matter from a different angle in separate concurring opinions. Two Justices concluded that the death penalty was “cruel and unusual” per se because the imposition of capital punishment “does not comport with human dignity” [2](https://www.law.cornell.edu/constitution-conan/amendment-8/furman-and-moratorium-on-death-penalty#fn2amd8 " Furman, 408 U.S. at 257 (Brennan, J.). ") or because it is “morally unacceptable” and “excessive.” [3](https://www.law.cornell.edu/constitution-conan/amendment-8/furman-and-moratorium-on-death-penalty#fn3amd8 " Id. at 314 (Marshall, J.). ") One Justice concluded that because death is a penalty inflicted on the poor and hapless defendant but not the affluent and socially better situated defendant, it violates the implicit requirement of equality of treatment found within the Eighth Amendment .[4](https://www.law.cornell.edu/constitution-conan/amendment-8/furman-and-moratorium-on-death-penalty#fn4amd8 " Id. at 240 (Douglas, J.). ") Two Justices concluded that capital punishment was both “cruel” and “unusual” because it was applied in an arbitrary, “wanton,” and “freakish” manner[5](https://www.law.cornell.edu/constitution-conan/amendment-8/furman-and-moratorium-on-death-penalty#fn5amd8 " Id. at 306 (Stewart, J.). ") and so infrequently that it served no justifying end.[6](https://www.law.cornell.edu/constitution-conan/amendment-8/furman-and-moratorium-on-death-penalty#fn6amd8 " Id. at 310 (White, J.). The four dissenters, in four separate opinions, argued with different emphases that the Constitution itself recognized capital punishment in the Fifth and Fourteenth Amendments, that the death penalty was not “cruel and unusual” when the Eighth and Fourteenth Amendments were proposed and ratified, that the Court was engaging in a legislative act to strike it down now, and that even under modern standards it could not be considered “cruel and unusual.” Id. at 375 (Burger, C.J.), 405 (Blackmun, J.), 414 (Powell, J.), 465 (Rehnquist, C.J.). Each of the dissenters joined each of the opinions of the others. ")

Footnotes

1

408 U.S. 238 (1972) . The change in the Court’s approach was occasioned by the shift of Justices Potter Stewart and Byron White, who had voted with the majority in McGautha v. California, 402 U.S. 183 (1971) .

2

Furman, 408 U.S. at 257 (Brennan, J.).

3

Id. at 314 (Marshall, J.).

4

Id. at 240 (Douglas, J.).

5

Id. at 306 (Stewart, J.).

6

Id. at 310 (White, J.). The four dissenters, in four separate opinions, argued with different emphases that the Constitution itself recognized capital punishment in the Fifth and Fourteenth Amendment s, that the death penalty was not “cruel and unusual” when the Eighth and Fourteenth Amendment s were proposed and ratified, that the Court was engaging in a legislative act to strike it down now, and that even under modern standards it could not be considered “cruel and unusual.” Id. at 375 (Burger, C.J.), 405 (Blackmun, J.), 414 (Powell, J.), 465 (Rehnquist, C.J.). Each of the dissenters joined each of the opinions of the others.