408 U.S. 238 (1972), argued 17 Jan. 1972, decided 29 June 1972 per curiam by vote of 5 to 4; Stewart, White, Douglas, Brennan, and Marshall each concurred separately; Burger, Blackmun, Powell, and Rehnquist dissented jointly and separately. The Supreme Court, for the first time, struck down the death penalty under the cruel and unusual punishment clause of the Eighth Amendment. A jury in Georgia had convicted Furman for murder, and juries in Georgia and Texas had convicted two other petitioners for rape. All three juries imposed the death penalty without any specific guides or limits on their discretion. The Supreme Court in McGautha v. California (1971) had previously held that such guidelines were unnecessary. All three petitioners were African-American. Three justices for the majority found that jury discretion produced a random pattern among those receiving the death penalty and that this randomness was cruel and unusual. Two justices found capital punishment a per se violation of the Constitution.
More specifically, Justice William O. Douglas concluded that death was disproportionately applied to the poor and socially disadvantaged; he virtually equated the Eighth Amendment with equal protection values. Justice Potter Stewart argued that the failure of the legislature to call for a mandatory death sentence, coupled with the infrequent imposition and execution of death sentences, in practice made the penalty cruel and unusual in the same way that being struck by lightning is cruel and unusual. White insisted that the infrequency of execution prevented the penalty from serving as an effective deterrent and from consistently meeting social needs for retribution. For White the penalty's social irrationality made it cruel and unusual.
Justices William Brennan and Thurgood Marshall both concluded that the death penalty was per se cruel and unusual. Brennan found the punishment degrading to human dignity, arbitrarily severe, and unnecessary. Marshall attacked the penalty most directly, finding it excessive, unnecessary, and offensive to contemporary values.
The dissenters argued that the courts should not challenge legislative judgments about the desirability and effectiveness of punishments. They also pointed to opinion polls showing general public support for the penalty.
Furman halted all executions in those thirty-nine states that sanctioned the death penalty. More than six hundred people waited on death row at the time. Furman also seemed to create three Eighth Amendment options: mandatory death sentences for crimes carefully defined by statute, development of guidelines to standardize jury discretion, and outright abolition. Of these, outright abolition was least likely, since a majority of the justices acknowledged the validity of the retributive motive in punishment and only two condemned the penalty per se. But, like life and death themselves, the course of the law has taken unforseen turns.
In Gregg v. Georgia (1976), the Court embraced a form of guided jury discretion, although the guidelines do not systematically reduce randomness. Juries sitting in the penalty phases of capital trials as prescribed by Gregg consider unique aggravating and mitigating circumstances in each case. This trend has effectively overruled Furman's holding because juries, even when they operate under statutory guidelines, consider unique circumstances. This process inevitably perpetuates inconsistencies in sentencing, but the Court no longer finds these inconsistencies constitutionally unacceptable.