True, the court’s 1972 decision in Furman v. Georgia held that, when imposed in an arbitrary or capricious manner, th e death penalty violated the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Because, under the state laws then in force, only an unfortunate few of those convicted of a capital crime were being sentenced to death, Justice Potter Stewart likened it to “being struck by lightning.” The Constitution, he said, could not permit “this unique penalty to be so wantonly and so freakishly imposed.”
But this did not put an end to capital punishment. Within a few years, 35 states rewrote their death-penalty statutes, and in 1976, in cases from Georgia, Texas and Florida, the Supreme Court upheld their constitutionality.