Playing to the Gallery: Public Opinion as a Factor in Death Penalty Court Decisions, particularly Furman v. Georgia Essay

“When an unusually severe punishment is authorized for

wide-scale application but not, because of society’s refusal,

inflicted save in a few instances, the interference is compelling that

there is a deep seated reluctance to inflict it.

Indeed the likelihood is great that the punishment

is tolerated only because of its disuse”

Justice Brennan

Ever since the beginning of humankind, the death penalty has been used as a manner by which wrongdoers are punished for their crimes against society. The oft-quoted Biblical saying, “an eye for an eye, a tooth for a tooth” captures succinctly this notion of retributive justice. A man, for instance, who has been adjudged guilty of murdering another man, will be sentenced to death. The manner of death is another issue altogether. Many imaginative and cruel ways of implementing the death penalty have been witnessed through time – from the guillotine to the garrote to firing squads to gas chambers to electric chairs — before the more “humane” lethal injection has been made the manner of choice in countries that consider themselves civilized.

The question presented in the case of Furman v. Georgia is a compelling one: Does the death penalty, in itself and regardless of manner of execution, constitute cruel and unusual punishment in violation of the Eight and Fourteenth Amendments? In a ruling that shook the American legal system and compelled all states to reexamine their capital punishment legislation, the United States Supreme Court held that the death penalty was “arbitrary and capricious”. Said Justice Potter Stewart:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race.

Consequently, more than 600 convicted inmates had their death sentences commuted to life imprisonment. As the Supreme Court did not say that the death penalty law was unconstitutional, only that it was random in its application – and in the Furman case, would result in the killing of a mentally-challenged man – states interpreted this to mean that they could rewrite their death penalty statute so as to incorporate a set of definite and reasonable standards for courts to follow. Consequently, in 1976, these new laws were tested in the case of Gregg v. Georgia and the Supreme Court held that these laws were no longer infirm.

Of particular import to this paper is the concurring opinion of Justice Brennan wherein he opined that the death penalty law runs contrary to a growing public consciousness in contemporary society that has become unwilling to support state-sponsored executions of convicted criminals. Asserts Brennan, “And it is our society that insists upon due process of law to the end that no person will be unjustly put to death, thus ensuring that many more of those sentences will not be carried out. In sum, we have made death a rare punishment today.”

What Brennan appears to be stating is that a reason for considering the death penalty as arbitrary and capricious is because it is so widely rejected by the people that it has fallen into disuse as a penalty in the criminal justice system. Two things may be inferred from Brennan’s statement. First is that public opinion is a valid determinant of the merit or demerit of a particular policy or proposal, and second, that public opinion indeed reflects an aversion to capital punishment.

The end result of Brennan’s argumentation is good: that the death penalty is indeed arbitrary and capricious. It is the argument and the two earlier mentioned inferences that may be in need of further scrutiny and study.

First of all, it is dangerous to use as barometer of the merit or demerit of a particular policy the public pulse – especially in an emotionally-charged issue like the death penalty. If an issue can derive legitimacy from the fact that it is well-supported, it may, consequently, derive illegitimacy from the fact that it is not well-supported. To say therefore, that the anti-death penalty advocacy is meritorious only because it is supported by a resounding public clamor, would be to render this advocacy vulnerable in a situation or context when the advocacy becomes unpopular, as when, for instance, the crime rates spiral and people are convinced that capital punishment is the only solution. It would also be akin to saying that the anti death penalty advocacy is not meritorious in societies where people staunchly believe in retributive justice. The opposite is true; for it is precisely in these societies where the call to abolish the death penalty is more urgent.

An international example could be found in Islamic countries all over the world. Islamic law is unequivocal in its prescription of corporal or bodily punishment, believing it to be better than prison sentences because it incurs greater cost on the tax payer, the prisoner stands a greater likelihood of ending up “hardened” instead of reformed and the family of the offender is robbed of a breadwinner who should be working to provide for his or her brood. (Abdul-Kader, 2002). Hence, the types of punishment prescribed and sanctioned under Islamic law range from flogging, lashing, cutting of hands, to stoning – types which have been prohibited in most if not all Western countries.

Another aspect of Islamic justice that would seem shocking to Western sensibilities would be its “public” component. Under Islamic law, penalties have to be carried out in public so as to serve as a deterrent to the public. Says Abdul-Kader:

The Quran tells us that a party of the people should witness the meting out of the punishment (24:2). Special stadiums and arenas should be built and the public should be actually invited to view the punitive act being carried out. It could even be televised these days – as the Americans televise the death penalty by lethal injection. Why? The Quran states that viewing such scenes wherein various punishments are carried out, could serve as a deterrent and a lesson for the public. (5:38)

The cases of cruel and unusual punishments are by no means isolated. In Nigeria, a teenage single mother was sentenced to 180 lashes for having pre-marital sex. When she protested that she was raped by three men, her penalty was increased even further for “bringing false accusations.” In Sudan, a married person found guilty of adultery is executed by stoning; an unmarried person receives 100 lashes. In Afghanistan during the Taliban regime, a woman and a man were stoned to death in public using palm-sized stones for non-marital sex. The man died within minutes but the woman had to be finished off by dropping a large chunk of stone over her head.

Brennan then suggests that public perception reflects an aversion to death penalty. That may be true in countries in the European Union where human rights awareness is thriving; but that might be less true in countries with authoritarian regimes, or countries where, as mentioned earlier, religion is at the forefront of affairs of the state and defines public policy. Closer to home, in the United States, it cannot be said that the call to abolish the death penalty is a universal one. In fact, many conservatives have derisively labeled anti-death penalty advocates as a small group of noisy human rights beatnik activists.

Hence, it is clear that Brennan’s thesis not only is dangerous in that he unwittingly rendered the anti-death penalty advocacy vulnerable, but it also is unsupported by empirical evidence. Bowers (159) called it “the Court’s misplaced apprehension about public opinion” and he could be right. That is why the affirmation of death penalty in Gregg v. Georgia in 1976 took place. To quote Bowers:

That is to say, the Court’s 1976 affirmation and 1987 reaffirmation of capital punishment (1) may reflect the Court’s belief that the public wants capital punishment and to do away with it would be disastrous to the Court’s credibility before the public when, in fact, (2) the public’s expressed support for capital punishment is not a genuine but a spurious function of people’s desire for harsh but meaningful punishment for convicted murderers.

The very idea that a judge would take the public pulse into consideration as he makes his decision on a particular case is troubling. It is the duty of a judge to apply the relevant law and render a verdict according to the dictates of justice as he best understands it. It is not his province to take into account whether or not the decision would be popular; he should rule as Lady Justice does – with blindfolds. This of course, is certainly not surprising. After all, as stated by Andrew Altman, a Critical Legal Studies (CLS) scholar in the article Legal Realism, Critical Studies and Dworkin, the law is infused with irresolvably opposed principles and ideals, and this legal indeterminacy, as it is called, compels the judge to make a choice that is not dictated by law. Under the glare of CLS scrutiny, once-sacrosanct legal precepts are being dismantled, stare decisis as a doctrine is being reexamined, and the infallibility of the courts as repository of truth and justice is being questioned. The law is no longer a fabric of clearly-defined spectrums, but is rather a patchwork quilt of various shades of gray. By no means a perfect discipline, CLS is important in that it stimulates self-interrogation. It does away with the all-too-convenient givens of a legal system – that there is but one set of “correct” rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable. In the decisions surrounding death penalty it is patent that the decisions are not logical outcomes of tested principles but are rather the products of arbiters who pander to popular sentiment. While this would certainly cause disquiet in any circumstance or in any case, it is particularly troubling when the issue at hand is the death penalty and one man is confronted with the very real possibility that his life may be taken away from him.

Interesting is the analysis of Bowers with respect to opinion polls and court decisions –

The Court has paid close attention to public opinion polls on the death penalty. In a 1968 decision that said that people could not be kept off capital juries simply because they personally opposed the death penalty (Witherspoon v. Illinois, 1968) Justice Stewart, writing for the Court, declared that the United States “was a nation less than half of whose people believed in the death penalty” (p. 520) citing a 1966 Gallup poll showing 42% in favor, 47% opposed, and 11% undecided. He went on to say that “a jury consisting entirely of death penalty supporters would speak only for “a distinct and dwindling minority,” contrasting the 1966 figures with an earlier 1960 poll showing 51% in favor, 36% opposed and 13% undecided.

By 1972, when the Court declared the death penalty unconstitutionally arbitrary in Furman, death penalty support was on the rise in the polls. Chief Justice Burger noted that a 1969 poll showed a 51% majority in favor of the death penalty and 40% opposed, and he contrasted these results with those of the 1966 Gallup poll showing 42% in favor and 47% opposed. (dissenting, p. 386). Justice Marshall responded with serious questions about the adequacy of the polls for judging whether capital punishment comports with contemporary values.

This preoccupation with what the public thinks obscures the fundamental objections to the death penalty law, which should be a more reliable foundation of the moves to repeal it. For example, human errors and frailty, as well as the lack of adequate forensic facilities in some countries, have led to many convictions that later turn out to be wrong. In a situation where the maximum penalty that may be meted out is life imprisonment, the State may still be able to provide reparation for an innocent man wrongly convicted. He will be allowed to go free and will even be given damages. In a country where the death penalty is legal, the finality of the sentence of death renders any mistake in convictions irreversible.

The problem is serious considering that, according to a death penalty information website, “since 1973, at least 121 people have been released from death row after evidence of their innocence emerged. During the same period of time, over 982 people have been executed. Thus, for every eight people executed, we have found one person on death row who never should have been convicted.”

In large part, this is what has affected public opinion – at least, the opinion of those who have taken the anti-death penalty position. This issue has generated widespread public outrage and is perhaps one of the more compelling reasons as to why the anti-death penalty advocates are gaining ground. Says Haines (125):

An analysis of newspaper coverage suggests that flawed convictions, in which possibly innocent persons either suffer or narrowly escape execution, are especially potent threats to public support for capital punishment.

In a way, that is what Justice Marshall is arguing in what is now known as the Marshall hypothesis. According to him, the American people were poorly informed on the issue of death penalty and therefore, their opinion should be given little weight because only a public “fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust and unacceptable.”

Certainly, this argument should be given credence and it supports the argument of Justice Brennan that the death penalty should be abolished for being arbitrary and capricious, although the two arguments were based on different, if not opposite, premises. There are certainly a lot of misconceptions that need to be clarified with respect to the issue of capital punishment. For instance, many have argued that the death penalty should be used to deter crimes. As stated by Passell (61), “Execution may be commonly viewed as a distasteful alternative to other forms of punishment, but an alternative that could be defended on pragmatic grounds, if the gains in crime prevention are sufficiently great.” The empirical evidence, however, militates to the contrary. For example, it has been established that states in the United States that do not have the death penalty in their record books generally have fewer murders than states that employ this particular type of punishment. Moreover, the U.S., with the death penalty, has more murders and more capital crimes committed yearly than the countries of the European Union, which have collectively decided to renounce abolish the death penalty as a demonstration of its commitment to human rights.

Given that a great number of crimes committed are not premeditated, it is not difficult to see how the death penalty would not work as a deterrent. In fact, the former Texas attorney general himself, a state known for its great number of executions, Jim Mattox, was quoted as saying, “It is my own experience that those executed in Texas were not deterred by the existence of the death penalty law. I think in most cases you'll find that the murder was committed under severe drug and alcohol abuse.”

Second, very few people see the race angle. The death penalty debate is in itself a very complicated and very emotional issue. It is made even more protracted when the racial dimension or angle is added into the picture. And yet, it cannot be denied that race is an important factor to be considered when discussing or mulling over the issue. While it may seem that it is only a matter of ascertaining a person’s guilt and imposing the appropriate penalties, there are invisible biases and historical prejudices at play and the statistics to corroborate this assertion are staggering. Says Wolfgang and Riedel (119), The record of executions in the United States has long shown that black defendants are disproportionately subjected to this sanction… Strong statistically significant differences in the proportions of blacks sentenced to death, compared to whites, when a variety of nonracial aggravating circumstances are considered, permit the conclusion that the sentencing differentials are the product of racial discrimination.”

The Marshall Hypothesis has been put to the test on several occasions. In an interesting study by Lambert (215), a scientific test was actually conducted using a select sample space. To quote from the study:

In Furman v. Georgia, Justice Marshall hypothesized that informed individuals would not support the death penalty. To test this hypothesis, survey results from 730 students at a Michigan university were used. Students read one of three essays; one focusing on death penalty deterrence research, another on the chances of sentencing an innocent person to death, and the third on the general reasons for punishing offenders (i.e., the control essay). The innocence essay resulted in a small but statistically significant reduction of support. There was no statistically significant reduction in support for the death penalty among the deterrence and control essay groups.

From this test, it would seem that the argument on innocent convicts is the most persuasive; and the deterrence and control argument, not as persuasive.


In the final analysis, it must be remembered that what is important is what these arguments actually say, their significance and merit, and not how convincing or persuasive they are. In making the death penalty debate a game of numbers, the issue is being unfortunately trivialized. There is a compelling need to keep the law moored in a stable scientific framework. The more scientific it is, the more empirical, the less likely will it be subjected to the vagaries of politics and the moral predispositions of our human arbiters and judges. The element of replicability will safeguard it against fluctuations of power.

However, given the changing complexion of conflicts and players that has led to the creation of many new areas of dispute and controversy, given the increase of social sectors and the resultant widening of the competition of divergent interests, the law has no choice but to reposition itself. The many gaps in the law that have failed to take into account these newly-emergent and marginalized interests demand that the legal system view itself as a mechanism to address ininquity and to take on a more responsive – and responsible – social function.

The most important thing, therefore, is to strike a balance. The law should keep itself solid and reliable, a bulwark of stability, and in so doing, with slow and sure steps, it shall find itself becoming a credible advocate for felt and real changes.

Works Cited

Bowers, William. “Research Note – Capital Punishment and Contemporary Values: People’s Misgivings and the Court’s Misperceptions.” Law & Society Review, Vol. 27, No. 1. (1993), pp. 157-176.

Haines, Herb. “Flawed Executions, the Anti-Death Penalty Movement, and the Politics of Capital Punishment.” Social Problems, Vol. 39, No. 2 (May, 1992), pp. 125-138.

Lambert, Eric. “The Impact of Information on an Individual's Support of the Death Penalty: A Partial Test of the Marshall Hypothesis among College Students.” Criminal Justice Policy Review, (2001) Vol. 12, No. 3, 215-234.

Passell, Peter. “The Deterrent Effect of the Death Penalty: A Statistical Test” Stanford Law Review, Vol. 28, No. 1 (Nov., 1975), pp. 61-80.

Riedel, M. & Wolfgang, M. “Race, Judicial Discretion, and the Death Penalty.” Annals of the American Academy of Political and Social Science, Vol. 407, Blacks and the Law (May, 1973), pp. 119-133