On June 29, 1972, the Supreme Court (5-4) decided Furman v. Georgia, finding that the application of the death penalty were unconstitutional because they violated the Eighth Amendment’s ban on cruel and unusual punishment. The Court voided every state’s existing death penalty statute and every commuted death sentences.
The Furman v. Georgia decision lasted four years. A new justice joined the court after the Furman decision: Justice John Paul Stevens.
The death penalty was reinstated in Gregg v. Georgia, when the Court approved new sentencing schemes intended to make the death penalty less arbitrary. The court rejected automatic death sentences and held death sentences cannot be characterized by “arbitrariness and capriciousness.” The ruling led to the use by states of aggravating and mitigating circumstances in determining capital sentencing.
In an October 2010 interview on National Public Radio, then newly-retired Supreme Court Justice John Paul Stevens said he particularly regretted one vote during his 35 years on the high court—his 1976 vote to uphold the death penalty in Gregg v. Georgia.
Stevens remarked, “I thought at the time … that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate.” But, he added, over the years, “the Court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense.” Justice Stevens also said that the court has made death penalty procedures more sympathetic to prosecutors: “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing.”
in addition to Justice Stevens, two other justices in the Gregg majority announced a different position: Justices Blackmun and Powell.
Justice Harry Blackmun later changed his mind and concluded the theory he upheld in 1976 had failed: “For more than 20 years I have endeavored - indeed, I have struggled - along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed. It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies” (Callins v. Collins, 1994).
50 years after the Furman decision, 23 states and the District of Columbia has abolished the death penalty.
27 states and the federal government retain the death penalty. However, three states (California in 2019, Pennsylvania in 2015, and Oregon in 2011) and the federal government have declared a moratorium on executions.