Furman v. Georgia

LOCATION: Georgia State Capitol

DOCKET NO.: 69-5030
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Supreme Court of Georgia

CITATION: 408 US 238 (1972)
ARGUED: Jan 17, 1972
DECIDED: Jun 29, 1972

Anthony G. Amsterdam - Argued the cause for the petitioner
Charles Alan Wright - for respondent State of Texas
Dorothy T. Beasley - Argued the cause for respondent
Elmer Gertz - for amici curiae
Jack Greenberg - for petitioner Jackson
Jr. Charles Alan Wright -
Melvyn Carson Bruder - for petitioner Branch
Willard J. Lassers - for amici curiae

Facts of the case

Furman was burglarizing a private home when a family member discovered him. He attempted to flee, and in doing so tripped and fell. The gun that he was carrying went off and killed a resident of the home. He was convicted of murder and sentenced to death (Two other death penalty cases were decided along with Furman: Jackson v. Georgia and Branch v. Texas. These cases concern the constitutionality of the death sentence for rape and murder convictions, respectively).


Does the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?

Media for Furman v. Georgia

Audio Transcription for Oral Argument - January 17, 1972 in Furman v. Georgia

Warren E. Burger:

We will hear arguments next in number 69-5031, Branch against Texas.

Mr. Bruder.

Melvyn Carson Bruder:

Mr. Chief Justice and may it please the court.

This case is here on writ of certiorari to the Court of Criminal Appeals to review a death penalty rape conviction in Wilbarger County District Court in the State of Texas.

The evidence produced by the State which was uncontroverted by any other evidence put on by the defendant, petitioner in this case, indicated that in the early morning hours, a young negro male, later identified to be the petitioner, forced his way into the home of the complainant, and assaulted her, raped her, conversation ensued thereafter for sometime, he then left and was arrested, convicted and given the death penalty.

There was absolutely no medical testimony showing any type of injury of any sort to the complainant in this case.

We feel that capital punishment in this case is unusual under the Eighth Amendment for two basic reasons.

First of all, the standards by which we suggest this Court to gauge whether or not capital punishment is unusual in any case, indicate that it is unusual in terms of frequency of use.

The fact that it is used on identifiable minority and the fact that it has a historical pattern of use in the South upon blacks.

We respectfully submit that the standards which are appropriate, pardon me, for this Court’s use are those laid out in Baker versus Car, Brown versus Board of Education, and Jacobellis versus Ohio.

That is to say, national standard must be employed to determine whether or not the use of any punishment in any one case in any County or State is unusual or is not unusual.

Applying the national standards, we see that there are a very limited number of States that use capital punishment as punishment for the offense of rape.

In going to Texas, we have some statistics in an article by Koeninger which I have cited in the brief.

I think these statistics go farther than most statistics that have been presented to the Court.

Koeninger studies go not only to the number of blacks who have received the death penalty for rape, but they also cover the frequency with which any defendant accused of rape can expect to receive the death penalty.

So, the fact that 89% or 90% of all persons convicted of rape and given the death penalty in Texas are black, might be a convincing argument, but we feel that a more convincing argument is the fact that when a black man in Texas is convicted of rape, he has an 88% chance of receiving a death penalty, and this is in contradiction to the 22% chance that any white or Chicano faces in the same situation.

William O. Douglas:

And where did you get that percentage?

Melvyn Carson Bruder:

This percentage is based on Koeninger’s article in which he says the ratio –

William O. Douglas:

I do not find that in your brief.

Melvyn Carson Bruder:

Here is in the brief at pages 19 and 20 Justice Douglas.

William O. Douglas:

Thank you.

Melvyn Carson Bruder:

The amazing thing that I found in the Koeninger studies is, there has been some instances in Texas of joint trial, a negro and a white defendant accused of raping the same person at the same time, and Koeninger studies indicate that in these type of cases, the negro invariably will get the death penalty, whereas the white or the Latin American will be spared that fate.

Now, the State has attempted to refute some of these statistics by saying that Negros commit more rapes.

They cite some sort of in Denver’s statistics, I do not think these are applicable in view of Koeninger's thoroughness, because Koeninger uses pure statistics.

The expectancy of the death penalty on a racial basis as opposed to the percentages of race who get death and who do not get death and then another interesting point that concerns this case only; in Texas, the legislature has seen fit to create a number of offenses, all of which conceivably could be charged in a rape situation.

There is the offense of aggravated assault, male or female to the offense of murder or assault to murder with or without malice.

The only --

William O. Douglas:

The point of discrimination that aggravates this trial and then assuming this is?

Melvyn Carson Bruder:

Your Honor, I believe it was briefed very generally in the brief, I did not participate until after the conviction was affirmed.

I have a problem where no statistics or no proof introduced at the trial level or on any hearings or motion for new trial.