A Moratorium on Executions

In 1972, as a result of Furman v. Georgia, the Supreme Court rules the death penalty unconstitutional for the first time. This is a controversial five-to-four decision, and all nine justices write individual opinions, a rare occurrence that reflects the diverse reasoning leading to their judgments. The five majority arguments all hinge on the Eighth Amendment, but they cite different aspects of the death penalty as cruel and unusual. A few justices explain that execution, by its nature, is unconstitutional according to evolving standards of decency. Others point to the process involved in a capital sentence as violating the constitution. Using terms like "capricious" and "wantonly freakish," some justices condemn the random way the penalty is applied: Two people committing similar murders are not equally likely to receive the ultimate punishment, suggesting it is determined by a throw of the dice. Others write that it is quite the opposite of random: The death penalty is invoked in a biased and prejudicial manner. This lack of procedural guides in the judicial process results in unbridled and unstructured discretion and renders capital punishment unconstitutional.

Following the decision, there is a nationwide moratorium on executions. All death sentences are commuted to life in prison, and inmates on death row are moved into the general prison population. This extraordinary moment in criminological history will be short-lived. The amorphous nature of the ruling leaves a lot of legislative room. Just four years later, a new capital punishment statute passes constitutional muster.

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