What was furman vs georgia

Georgia , that the application of the death penalty in three cases was unconstitutional. The Court would clarify that ruling in a later case in , putting the death penalty back on the books under different circumstances. The debate over whether the death penalty constitutes cruel and unusual punishment dates back to the Founding Fathers.

In , during the debate over the Bill of Rights in the First Congress, one argument was over the extent of the death penalty. The First Congress adopted a more moderate view when it proposed the Eighth Amendment for ratification in the Bill of Rights. It was also concerned about the use of harsh punishments in an arbitrary and disproportionate way. In , the Court ruled in Wilkerson v. Then in , the Court broadened its criteria in Weems v. Finchs of our society are never executed -- only those in the lower strata, only those who are members of an unpopular minority or the poor and despised.

The tension between our decision today and McGautha highlights, in my view, the correctness of MR. I should think that if the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on petitioners because they are "among a capriciously selected random handful upon whom the sentence of death has in fact been imposed," opinion of MR. McGautha v. For discussion of statistical symbols, see Bedau, supra, at On the basis of this study it is not possible to indict the judicial and other public processes prior to the death row as responsible for the association between Negroes and higher frequency of executions; nor is it entirely correct to assume that from the time of their appearance on death row Negroes are discriminated against by the Pardon Board.

Too many unknown or presently immeasurable factors prevent our making definitive statements about the relationship. If such a relationship had not appeared, this kind of suspicion could have been allayed; the existence of the relationship, although not proving differential bias by the Pardon Boards over the years since , strongly suggests that such bias has existed.

If a James Avery [ U. Both the rich and the poor usually are well represented -- the poor because, more often than not, the best attorneys are appointed to defend them. It is the middle-class defendant, who can afford to hire an attorney but not a very good one, who is at a disadvantage. Certainly William Fikes [ U. An attorney must be found who is prepared to spend precious hours -- the basic commodity he has to sell -- on a case that seldom fully compensates him and often brings him no fee at all.

The public has no conception of the time and effort devoted by attorneys to indigent cases. And, in a first-degree case, the added responsibility of having a man's life depend upon the outcome exacts a heavy toll.

The question presented in these cases is whether death is today a punishment for crime that is "cruel and unusual" and consequently, by virtue of the Eighth and Fourteenth Amendments, beyond the power of the State to inflict. Wilkerson v. Utah, 99 U.

Less than 15 years ago, it was again noted that "[t]he exact scope of the constitutional phrase cruel and unusual' has not been detailed by this Court. Those statement remain true today. The Cruel and Unusual Punishments Clause, like the other great clauses of the Constitution, is not susceptible of precise definition. Yet we know that the values and ideals it embodies are basic to our scheme of government.

And we know also that the Clause imposes upon this Court the duty, when the issue is properly presented, to determine the constitutional validity of a challenged punishment, whatever that punishment may be. In these cases, "[t]hat issue confronts us, and the task of resolving it is inescapably ours.

We have very little evidence of the Framers' intent in including the Cruel and Unusual Punishments Clause among those restraints upon the new Government enumerated in the Bill of Rights. The absence of such a restraint from the body of the Constitution was alluded to, so far as we now know, in the debates of only two of the state ratifying conventions. In the Massachusetts convention, Mr. Holmes protested:. They are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.

Elliot's Debates 2d ed. Holmes' fear that Congress would have unlimited power to prescribe punishments for crimes was echoed by Patrick Henry at the Virginia convention:.

Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence -- petty larceny. They may define crimes and prescribe punishments.

In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our [Virginia] bill of rights. Will they find sentiments there similar to this bill of rights? You let them loose; you do more -- you depart from the genius of your country. These are prohibited by your [Virginia] declaration of rights. What has distinguished our ancestors?

These two statements shed some light on what the Framers meant by "cruel and unusual punishments. Holmes and Henry were objecting to the absence of a Bill of Rights, and they cited to support their objections the unrestrained legislative power to prescribe punishments for crimes. Certainly we may suppose that they invoked the specter of the most drastic punishments a legislature might devise.

In addition, it is quite clear that Holmes and Henry focused wholly upon the necessity to restrain the legislative power. Because they recognized "that Congress have to ascertain, point out, and determine what kinds of punishments shall be inflicted on persons convicted of crimes," they insisted that Congress must be limited in its power to punish.

Accordingly, they. The only further evidence of he Framers' intent appears from the debates in the First Congress on the adoption of the Bill of Rights.

Livermore thus agreed with Holmes and Henry that the Cruel and Unusual Punishments Clause imposed a limitation upon the legislative power to prescribe punishments. However, in contrast to Holmes and Henry, who were supporting the Clause, Livermore, opposing it, did not refer to punishments that were considered barbarous and torturous.

Instead, he objected that the Clause might someday prevent the legislature from inflicting what were then quite common and, in his view, "necessary" punishments -- death, whipping, and earcropping. No member of the House rose to reply that the Clause was intended merely to prohibit torture. Several conclusions thus emerge from the history of the adoption of the Clause. We know that the Framers' concern was directed specifically at the exercise of legislative power.

They included in the Bill of Rights a prohibition upon "cruel and unusual punishments" precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes. Yet we cannot now know exactly what the Framers thought "cruel and unusual punishments" were. Certainly they intended to ban torturous punishments, but the available evidence does not support the further conclusion that only torturous punishments were to be outlawed.

As Livermore's comments demonstrate, the Framers were well aware that the reach of the Clause was not limited to the proscription of unspeakable atrocities. Nor did they intend simply to forbid punishments considered "cruel and unusual" at the time. The "import" of the Clause is, indeed, "indefinite," and for good reason. A constitutional provision.

Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth. It was almost 80 years before this Court had occasion to refer to the Clause. See Pervear v. The Commonwealth , 5 Wall. These early cases, as the Court pointed out in Weems v. Similarly, in In re Kemmler ,. The Court then observed, commenting upon the passage just quoted from Wilkerson v.

Utah, supra, and applying the "manifestly cruel and unusual" test, that. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. Had this "historical" interpretation of the Cruel and Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of Rights.

As the Court noted in Weems v. The result of a judicial application of this interpretation was not surprising. A state court, for example, upheld the constitutionality of the whipping post: "In comparison with the barbarities of quartering, hanging in chains, castration, etc. But this Court in Weems decisively repudiated the "historical" interpretation of the Clause. The Court, returning to the intention of the Framers, "rel[ied] on the conditions which existed when the Constitution was adopted.

The abuse of power might, indeed, be apprehended, but not that it would be manifested in provisions or practices which would shock the sensibilities of men. The Clause, then, guards against "[t]he abuse of power"; contrary to the implications in Wilkerson v. Utah, supra, and In re Kemmler, supra, the prohibition of the Clause is not "confine[d].

Although opponents of the Bill of Rights "felt sure that the spirit of liberty could be trusted, and that its ideals would be represented, not debased, by legislation," ibid. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts.

Surely, their [jealousy] of power had a saner justification than that. They were men of action, practical and sagacious, not beset with vain imagining, and it must have come to them that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation.

With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they.

And it was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the [Stuarts',] or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked. The Court in Weems thus recognized that this "restraint upon legislatures" possesses an "expansive and vital character" that is " essential.

Accordingly, the responsibility lies with the courts to make certain that the prohibition of the Clause is enforced. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked. In short, this Court finally adopted the Framers' view of the Clause as a "constitutional check" to ensure that, "when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives.

If the judicial conclusion that a punishment is "cruel and unusual" "depend[ed] upon virtually unanimous condemnation of the penalty at issue," then,. We know that the Framers did not envision "so narrow a role for this basic guaranty of human rights.

The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, "may not be submitted to vote; [it] depend[s] on the outcome of no elections. Board of Education v. Barnette, U. Judicial enforcement of the Clause, then, cannot be evaded by invoking the obvious truth that legislatures have the power to prescribe punishments for crimes.

That is precisely the reason the Clause appears in the Bill of Rights. The difficulty arises, rather, in formulating the "legal principles to be applied by the courts" when a legislatively prescribed punishment is challenged as "cruel and unusual. Were we to do so, the "constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas.

Rights declared in words might be lost in reality. The Cruel and Unusual Punishments Clause would become, in short, "little more than good advice. Ours would indeed be a simple task were we required merely to measure a challenged punishment against those that history has long condemned. That narrow and unwarranted view of the Clause, however, was left behind with the 19th century. Our task today is more complex. We know "that the words of the [Clause] are not precise, and that their scope is not static.

In Trop v. Dulles, supra, at U. It was said, finally, that:. While the State has the power to punish, the [Clause] stands to assure that this power be exercised within the limits of civilized standards. At bottom, then, the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments.

The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is "cruel and unusual," therefore, if it does not comport with human dignity. This formulation, of course, does not, of itself, yield principles for assessing the constitutional validity of particular punishments. Nevertheless, even though "[t]his Court has had little occasion to give precise content to the [Clause]," ibid.

The primary principle is that a punishment must not be so severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment. The infliction of an extremely severe punishment will often entail physical suffering. See Weems v.

Even though "[t]here may be involved no physical mistreatment, no primitive torture," Trop v. Dulles that the punishment of expatriation violates the Clause. United States that the punishment was "cruel and unusual. More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings.

The barbaric punishments condemned by history, "punishments which inflict torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs and the like," are, of course, "attended with acute pain and suffering. When we consider why they have been condemned, however, we realize that the pain involved is not the only reason.

The true significance of these punishments is that they treat. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.

The infliction of an extremely severe punishment, then, like the one before the Court in Weems v. Unite States, from which "[n]o circumstance of degradation [was] omitted," U. That attitude may be apparent apart from the severity of the punishment itself. In Louisiana ex rel. Indeed, a punishment may be degrading to human dignity solely because it is a punishment.

A State may not punish a person for being "mentally ill, or a leper, or. Robinson v. To inflict punishment for having a disease is to treat the individual as a diseased thing, rather than as a sick human being.

That the punishment is not severe, "in the abstract," is irrelevant; "[e]ven one day in prison would be a cruel and unusual punishment for the crime' of having a common cold.

Finally, of course, a punishment may be degrading simply by reason of its enormity. A prime example is expatriation, a "punishment more primitive than torture," Trop v. In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the Clause -- that the State must not arbitrarily inflict a severe punishment.

This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.

Indeed, the very words "cruel and unusual punishments" imply condemnation of the arbitrary infliction of severe punishments. This principle has been recognized in our cases. On that basis, the Court concluded:. Soldiers convicted of desertion or other capital military offenses are, in the great majority of cases, sentenced to be shot, and the ceremony for such occasions is given in great fulness by the writers upon the subject of courts-martial.

The Court thus upheld death by shooting, so far as appears, solely on the ground that it was a common method of execution.

As Wilkerson v. Utah suggests, when a severe punishment is inflicted "in the great majority of cases" in which it is legally available, there is little likelihood that the State is inflicting it arbitrarily. If, however, the infliction of a severe punishment is "something different from that which is generally done" in such cases, Trop v. This principle is especially important today. There is scant danger, given the political processes "in an enlightened democracy such as ours," id.

The more significant function of the Clause, therefore, is to protect against the danger of their arbitrary infliction. A third principle inherent in the Clause is that a severe punishment must not be unacceptable to contemporary society. Rejection by society, of course, is a strong indication that a severe punishment doe not comport with human dignity.

In applying this principle, however, we must make certain that the judicial determination is as objective as possible. Thus, for example, Weems v. Utah, supra, suggests that another factor to be considered is the historic usage of the punishment. In Robinson v. The question under this principle, then, is whether there are objective indicators from which a court can conclude that contemporary society considers a severe punishment unacceptable.

Accordingly, the judicial. Legislative authorization, of course, does not establish acceptance. The acceptability of a severe punishment is measured not by its availability, for it might become so offensive to society as never to be inflicted, but by its use.

The final principle inherent in the Clause is that a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary: the infliction of a severe punishment by the State cannot comport with human dignity when it is nothing more than the pointless infliction of suffering. If there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, cf.

California, supra, at U. This principle first appeared in our cases in Mr. Justice Field's dissent in O'Neil v. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted. This view of the principle was explicitly recognized by the Court in Weems v. United States, supra. There the Court, reviewing a severe punishment inflicted for the falsification of an official record, found that.

Stating that "this contrast shows more than different exercises of legislative judgment," the Court concluded that the punishment was unnecessarily severe in view of the purposes for which it was imposed. See also Trop v. There are, then, four principles by which we may determine whether a particular punishment is "cruel and unusual. The paradigm violation of this principle would be the infliction of a torturous punishment of the type that the Clause has always prohibited.

Yet "[i]t is unlikely that any State at this moment in history," Robinson v. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror.

Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such a punishment.

Nor, finally, is it likely that this Court will have to consider a severe punishment that is patently unnecessary; no State today would inflict a severe punishment knowing that there was no reason whatever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under any one principle. Since the Bill of Rights was adopted, this Court has adjudged only three punishments to be within the prohibition of the Clause.

Each punishment, of course, was degrading to human dignity, but of none could it be said conclusively that it was fatally offensive under one or the other of the principles.

Rather, these "cruel and unusual punishments" seriously implicated several of the principles, and it was the application of the principles in combination that supported the judgment.

That, indeed, is not surprising. The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is "cruel and unusual. The punishment challenged in these cases is death. Death, of course, is a "traditional" punishment, Trop v.

There is, first, a textual consideration raised by the Bill of Rights itself. The Fifth Amendment declares that if a particular crime is punishable by death, a person charged with that crime is entitled to certain procedural protections. We cannot, however, make the further inference that they intended to exempt this particular punishment from the express prohibition of the Cruel and Unusual Punishment Clause.

If anything, the indication is to the contrary, for Livermore specifically mentioned death as a candidate for future proscription under the Clause. See supra at U. Finally, it does not advance analysis to insist that the Framers did not believe that adoption. There is also the consideration that this Court has decided three cases involving constitutional challenges to particular methods of inflicting this punishment. In Wilkerson v. In Wilkerson, the Court concluded that shooting was a common method of execution, see supra at U.

Resweber, supra, the Court approved a second attempt at electrocution after the first had failed. It was said that "[t]he Fourteenth [Amendment] would prohibit by its due process clause execution by a state in a cruel manner," U. The constitutionality of death itself under the Cruel and Unusual Punishments Clause is before this Court for the first time; we cannot avoid the question by recalling past cases that never directly considered it.

The question, then, is whether the deliberate infliction of death is today consistent with the command of the Clause that the State may not inflict punishments that do not comport with human dignity. I will analyze the punishment of death in terms of the principles. Under these principles and this test, death is today a "cruel and unusual" punishment. Death is a unique punishment in the United States. In a society that so strongly affirms the sanctity of life, not surprisingly, the common view is that death is the ultimate sanction.

This natural human feeling appears all about us. There has been no national debate about punishment, in general or by imprisonment comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, see infra at U.

And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. Criminal defendants are of the same view. Griffin v. Illinois, U. Some legislatures have required particular procedures, such as two-stage trials and automatic appeals, applicable only in death cases.

See Williams v. This Court, too, almost. The only explanation for the uniqueness of death is its extreme severity. Death is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity.

No other existing punishment is comparable to death in terms of physical and mental suffering. Although our information is not conclusive, it appears that there is no method available that guarantees an immediate and painless death. Bishop, F.

In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. As the California Supreme Court pointed out, "the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.

Anderson, 6 Cal. Justice Frankfurter noted, "the onset of insanity while awaiting. Balkcom, U. The "fate of ever-increasing fear and distress" to which the expatriate is subjected, Trop v. The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself. Expatriation, for example, is a punishment that "destroys for the individual the political existence that was centuries in the development," that "strips the citizen of his status in the national and international political community," and that puts "[h]is very existence" in jeopardy.

Expatriation thus inherently entails "the total destruction of the individual's status in organized society. Yet, demonstrably, expatriation is not "a fate worse than death. Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose "the right to have rights.

A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court.

The punishment itself may have been unconstitutionally inflicted, see Witherspoon v. An executed person has indeed "lost the right to have rights. His execution is a way of saying, 'You are not fit for this world, take your chance elsewhere. In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity.

I would not hesitate to hold, on that ground alone, that death is today a "cruel and unusual" punishment, were it not that death is a punishment of longstanding usage and acceptance in this country. I therefore turn to the second principle -- that the State may not arbitrarily inflict an unusually severe punishment.

The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it. The evidence is conclusive that death is not the ordinary punishment for any crime. There has been a steady decline in the infliction of this punishment in every decade since the 's, the earliest period for which accurate statistics are available. In the 's, executions averaged per year; in the 's, the average was ; in the 's, it was 72; and in the years , it was There have been a total of 46 executions since then, 36 of them in The contemporary rarity of the infliction of this punishment is thus the end result of a long-continued decline.

That rarity is plainly revealed by an examination of the years , the last year period for which statistics are available. During that time, an average of death sentences. In fact, of course, far fewer were executed. Even before the moratorium on executions began in , executions totaled only 42 in and 47 in , an average of less than one per week; the number dwindled to 21 in , to 15 in , and to seven in ; in , there was one execution, and in , there were two.

When a country of over million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction. Although there are no exact figures available, we know that thousands of murders and rapes are committed annually in States where death is an authorized punishment for those crimes.

However the rate of infliction is characterized -- as "freakishly" or "spectacularly" rare, or simply as rare -- it would take the purest sophistry to deny that death is inflicted in only a minute fraction of these cases. How much rarer, after all, could the infliction of death be? When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily.

Indeed, it smacks of little more than a lottery system. The States claim, however, that this rarity is evidence not of arbitrariness, but of informed selectivity: death is inflicted, they say, only in "extreme" cases. Informed selectivity, of course, is a value not to be denigrated. Yet presumably the States could make precisely the same claim if there were 10 executions per. That there may be as many as 50 per year does not strengthen the claim.

When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible.

Certainly the laws that provide for this punishment do not attempt to draw that distinction; all cases to which the laws apply are necessarily "extreme. If, for example, petitioner Furman or his crime illustrates the "extreme," then nearly all murderers and their murders are also "extreme. For this Court has held that juries may, as they do, make the decision whether to impose a death sentence wholly unguided by standards governing that decision.

In other words, our procedures are not constructed to guard against the totally capricious selection of criminals for the punishment of death. Although it is difficult to imagine what further facts would be necessary in order to prove that death is, as my Brother STEWART puts it, "wantonly and.

I am not considering this punishment by the isolated light of one principle. The probability of arbitrariness is sufficiently substantial that it can be relied upon, in combination with the other principles, in reaching a judgment on the constitutionality of this punishment. When there is a strong probability that an unusually severe and degrading punishment is being inflicted arbitrarily, we may well expect that society will disapprove of its infliction.

I turn, therefore, to the third principle. An examination of the history and present operation of the American practice of punishing criminals by death reveals that this punishment has been almost totally rejected by contemporary society.

I emphasize, however, one significant conclusion that emerges from that history. From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy.

At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world,.

It is this essentially moral conflict that forms the backdrop for the past changes in, and the present operation of, our system of imposing death as a punishment for crime. In separate proceedings in Georgia state court, defendant Furman was convicted of murder and defendant Jackson was convicted of rape; defendant Branch was convicted of rape in Texas state court.

Defendants, all of whom were African-American, were sentenced to death after a trial by juries which, under applicable state statutes, had discretion to determine whether or not to impose the death penalty. Defendants' sentences were affirmed on appeal, and they were granted writs of certiorari.

Defendants argued that the death sentence was unconstitutional.