CRM/LAW C165 Lecture Notes - Lecture 5: Jury Nullification, Lightning
3 May 2018
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Furman v. Georgia
• Furman 1972
o 5-4 vote striking down death penalty
o 9 separate opinions
o Brennan and Marshall found it a per se violation of 8th amendment
o Douglas, Stewart, and White added three votes to make a majority
• Furman
o Justice Steward – absolute and unfettered jury discretion has led to arbitrariness;
death penalty is “wantonly and freakishly imposed”; is like being “struck by
lightning”
• aftermath of Furman
o within one year, 19 legislatures passed new death penalty statutes
o 16 more followed
o 2 types of new statutes
▪ mandatory death penalty for those convicted of certain crimes, e.g.,
murder of a police officer
▪ “guided discretion” statutes
• guided discretion statutes
o statutes attempt to channel jury’s discretion to meet concerns of Justices Steward
and White in Furman, to make death penalty less arbitrary
o bifurcation of guilt and penalty phases
o aggravating and mitigating circumstances
▪ aggravating – circumstances that make the crime worse
• defendant is more deserving of death penalty
• i.e., torturing, killing child, killing cop
▪ mitigating – circumstances that make the crime less bad than the average
murder
• make convicted murderer less deserving of death penalty than
average
• more about history of the convict and things that happened to them
that may explain how they ended up committing the murder
o ex. kinds of violence they experienced in their own life
▪ i.e. child abuse
• Woodson v. North Carolina 1976
o Supreme Court strikes down mandatory death penalty statutes
o mandatory statutes invite jury nullification
o mandatory statutes do not allow for mitigating circumstances
▪ fundamental respect for humanity requires consideration of individual
circumstances
o 5 Justices: Stewart, Powell, & Stevens, plus Brennan & Marshall, who adhered to
the idea that the death penalty was unconstitutional per se
o only one way to have constitutional death penalty statute guided discretion
statutes
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