Temporary Abolition of the Death Penalty

In 1972, the U.S. Supreme Court, in the case of Furman v. Georgia, imposed a temporary abolition of the death penalty. The case was unusual in that it commuted the sentence of hundreds of death-row prisoners to life imprisonment. 

The death penalty has been controversial throughout our country's history. Many death penalty challenges tried to end its use at various times.

The majority of states then revised their death penalty statutes. In 1976, the Court approved the laws in Georgia and two other states. The death penalty returned to the majority of states.

Despite the return of the death penalty, challenges arose time and again. Today, although 27 states maintain the death penalty in their laws, six of those states and the federal government are under a moratorium on its use.

This article will look at what was behind the temporary abolition of the death penalty in 1972 and its relation to today's bans at the federal level and in individual states.

Death Penalty Ban

In the landmark case Furman v. Georgiathe petitioners' claim focused on the arbitrary and discriminatory use of the death penalty in the states at issue. Furman involved the Supreme Court's consideration of three cases raising similar claims. By a vote of 5-4, the Court said that death penalty statutes in Georgia and Texas, giving the jury unbridled discretion in sentencing, could result in arbitrary sentencing. The five justices in the majority wrote five separate opinions. So, it was difficult to remove a new rule of law from the case. Most scholars conclude that most agreed that the criminal procedure for capital cases was deficient under state law. It did not give enough rational safeguards to guide a trial court or jury in sentencing. The Court maintained that the statutory scheme in Georgia and Texas was arbitrary and offended due process in its application. It was "cruel and unusual" and violated the Eighth Amendment of the U.S. Constitution.

As a result, with Furman, the Court voided state death penalty statutes, commuting the sentences of over 600 death row inmates in the United States. Its ruling put in place a temporary abolition of the death penalty. Existing state statutes were like Georgia and Texas and were no longer valid.

Return Of The Death Penalty

Georgia was again at the center of the death penalty controversy with another group of criminal cases heard in the Supreme Court in Gregg v. Georgia in 1976. In Gregg, the petitioners asked the Supreme Court to declare capital punishment as cruel and unusual punishment, violating the Eighth Amendment. The Court reviewed death sentences issued under new state laws passed since the Furman decision. The Court upheld the revised statutes in Georgia, Florida, and Texas. In a 7-2 decision, it re-established the death penalty as constitutional under the Eighth Amendment when the law properly guides the discretion of the trial judge or jury making the decision. In a separate case, it overturned state criminal laws that called for a mandatory death sentence after a capital conviction.

Since Gregg, state statutes should meet two basic requirements to prevent any future finding that the use of the death penalty was cruel and unusual.

  1. Sentencing in death penalty cases must be based on objective criteria to direct and limit the exercise of discretion
  2. The law must permit the sentencing judge or jury to adequately consider the defendant's character before making their decision. For example, the defense may offer the non-existence of a criminal record as a mitigating factor.

In Gregg, the states had set up bifurcated court proceedings. In the first stage, the trial stage, the judge or jury determines the guilt or innocence of the capital crime. If the jury finds the defendant guilty, the case proceeds to a sentencing stage. In that stage, they must find beyond a reasonable doubt one or more aggravating circumstances outlined in the statute to recommend a death sentence. At this stage, the state presents evidence of aggravating circumstances. The defense presents evidence of mitigating circumstances. Mitigating circumstances may lead the jury to vote for a life sentence rather than death. If the jury finds both aggravating and mitigating circumstances, it must decide if the aggravating circumstances outweigh the mitigating ones and support a death sentence. In Georgia, the Court noted and approved that the appeals process in such cases permitted an automatic appeal directly to the state supreme court.

The Court's Evolving Standards Post-Gregg

States continued to revise their statutes after Gregg to conform with the Court's ruling. Yet, the Supreme Court did not abandon the concept that its interpretation of the Eighth Amendment could evolve. In a series of decisions, it has addressed conflicts in the appellate courts and removed categories of defendants from a death sentence. It continues to refine case law in some areas. For example, mental illness comes in degrees. Some states have struggled to set standards for when an execution of a mentally ill person can go forward. As a result, these cases often make their way through the courts.

The following list provides some key Supreme Court rulings since Gregg:

  • Ring v. Arizona (1976) — The defendant has the right to a jury determination of whether an aggravating circumstance supports a death sentence.
  • Coker v. Georgia (1977) — Death sentence banned for rape (adult victim).
  • Enmund v. Florida (1982) — There's no death sentence where the co-defendant did not intend to kill the victim.
  • McClesky v. Kemp (1987) — Statistical studies showing racial disparities in capital cases do not show proof that an individual defendant's death sentence violates the Eighth Amendment.
  • Atkins v. Virginia (2002) — Defendants can't face execution when they suffer from mental retardation at the time of execution.
  • Roper v. Simmons (2005) — The state cannot execute minors, those who were under 18 at the time of the offense.
  • Kennedy v. Louisiana (2008) — Death sentence banned for child rape or other non-homicide offense.
  • Baze v. Rees (2008) — State-adopted three-drug protocol method of execution did not violate the Eighth Amendment.
  • Ramos v. Louisiana (2020) — There must be a unanimous jury verdict to convict a defendant of a serious offense.

Death Penalty: Recent State and Federal Moratoriums

When the Supreme Court issued its temporary ban on capital punishment in the Furman case in 1972, eight U.S. states had already abolished the death penalty under state law. Since that time, another 15 states have also ended the practice. Some have done so through statewide referenda. Others through votes in the state legislature.

State governors also have clemency power. This means they can grant a commutation or pardon in an individual case. In capital cases, the governor must sign a death warrant for the case to proceed to execution. So, in states that maintain the death penalty, a governor may elect to commute a death row inmate's sentence to life imprisonment. The president can do the same in a case under federal law.

Since 2019, six states and the federal government have granted a reprieve from their use of the death penalty. They have placed a moratorium on executions. What is driving state and federal authorities to reconsider the death penalty today?

Unlike the 1970s, recent moratoriums imposed by a state governor or the U.S. attorney general don't stem from court decisions. Instead, they reflect several growing concerns present in the criminal justice system that challenge the basis and application of the death sentence. California Governor Gavin Newsom declared capital punishment a "failure." He pointed to studies showing no deterrent effect and the harm discriminatory imposition causes in communities.

Public Opinion

For decades, public opinion has supported the use of the death penalty in the U.S. In 2023, for the first time, a Gallop poll showed that 50% of Americans find that the death penalty gets applied unfairly. Although 53% of Americans still support its use, that support is trending downward.


With DNA evidence and public record requests, groups like the Innocence Project have helped defendants re-open their cases. In some cases, new evidence has led to findings of innocence. In others, it has disclosed prosecutorial misconduct, raising whether the defendant got a fair trial. Lawsuits by former prisoners seeking compensation for wrongful convictions get heightened media attention. When Pennsylvania Governor Josh Shapiro announced he would continue the moratorium on the use of the death penalty, he cited the fallibility of the legal system and the irreversibility of a death sentence.

International Movement

The international movement for human rights often coincides with efforts and campaigns to end the death penalty in a given country. Groups like Amnesty International work for the freedom of political prisoners and oppose the death penalty. Opposition to the death penalty in other countries has had an impact on international pharmaceutical companies as well. Often, these companies refuse to provide the drugs used in lethal injection to death penalty states. In Ohio, the governor has said the inability to get such drugs forces him to postpone executions.

Lethal injection is the predominant method of execution in the U.S. Yet, questions remain about the drugs and the protocols used in executions. In Arizona, the governor announced a moratorium on executions. She appointed a retired federal magistrate to conduct an official review of the state's procurement of drugs and its manner of imposing a death sentence.

Disparate Impact

Studies continue to show that the use of the death penalty has a disparate impact on minorities and the poor. The Death Penalty Information Center reports that although half of murder victims in the U.S. are Black, almost 80% of new death sentences happen in cases with a white victim. Indigent defendants facing capital offenses encounter challenges related to the quality of legal representation and access to investigative resources.

U.S. Attorney General Merrick Garland cited concerns about the arbitrary nature of death sentences and their disparate impact on people of color in his 2021 memorandum imposing a moratorium on the use of the death penalty. Like efforts at the state level, he has ordered a review of federal protocols on executions and DOJ guidelines in this area.

Availability of Alternate Sentences

Several states now impose a sentence of life in prison without the possibility of parole in capital cases. Life imprisonment allows the opportunity for a wrongful conviction to come to light via new evidence or appellate review and get corrected.

More Questions About The Death Penalty? Get Legal Help

The death penalty is the most severe punishment. Advocates for and against capital punishment seek change at the legislative level. To understand the death penalty's role in a state or federal case, you must become familiar with the governing law in effect. An experienced attorney can help you and provide legal advice in appropriate cases. Consider reaching out to a local criminal defense attorney for more information.

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