Furman v. Georgia: Last Rites for the Death Penalty?

On June 29, 1972, the Supreme Court held the death penalty unconstitutional as a violation of the proscription 1 •. of cruel and unusual punishments in the eighth amendment.Significantly, the laconic per curiam opinion only held unconstitutional the three statutes before the court 2 and refrained from holding the death penalty unconstitutional per se.Almost immediately intense debate developed concerning whether new statutes imposing capital punishment would be constitutional.Five states have since approved legislation which purports to reinstate the death penalty, and a six~h may have done so by means of judicial interpre-.f . . 3 tat • ~on 0 an ex~st~ng statute.The unanswered question, and the question which this paper will attempt to answer, is whether such efforts are constitutional.To arrive at a conclusion it will be necessary to specul~te on what will satisfy the Furman Court.Before analyzing Furman, however , it is essential to consider .the two concepts which constituted its milieu: Cruel and unusual punishment and discretionary sentencing.After that, attention can be given to the Furman decision itself.Then