The making of American domestic policy 249the arbitrary and discriminatory nature of the judicial processes involved.
The discriminatory effect of state laws was described by Justice Thurgood
Marshall:
A total of 3,859 persons have been executed since 1930, of whom 1,751
were white and 2,066 were Negro. Of the executions, 3,334 were for mur-
der; 1,664 of the executed murderers were white and 1,630 were Negro;
455 persons, including 48 whites and 405 Negroes were executed for
rape. It is immediately apparent that Negroes were executed far more
often than whites in proportion to their percentage of the population.The Court found that the states that provided for capital punishment gave
juries broad discretion to decide whether or not to impose the death penalty,
making it an arbitrary procedure. The death penalty was therefore invali-
dated in those states and by implication in federal cases also. Even before the
Furman decision there had been a temporary moratorium on executions, and
now they were outlawed. But the fact that there was no united majority on
the Court meant that Furman would not be the last word on the death penalty.
It was clear that a majority of the justices would accept the death penalty on
certain conditions. Furthermore, a majority of the American public was in
favour of capital punishment for murder. In the wake of the Furman decision
thirty-five states adopted new laws which embodied sentencing procedures
that eliminated the discretionary provisions to which some of the Supreme
Court justices had objected. So, when in 1976 the Supreme Court was faced
with a decision on these newly fashioned capital punishment laws, it re-
stored the death penalty by a majority of seven to two, provided that certain
standards were met in sentencing procedures (Gregg v. Georgia). Marshall and
Brennan maintained their view that the death penalty was unconstitutional
per se, but the majority upheld the newly revised laws of Georgia, Texas and
Florida, which they considered to embody procedures which eliminated arbi-
trary and capricious decisions by juries. Executions began again in 1977 and
have continued since. In 2005 there were thirty-eight states which had stat-
utes enabling capital punishment; sixty people were executed, one of them
a woman, nineteen of them in Texas; forty-one were white, nineteen were
black; there were 3,314 persons in state and federal prisons under sentence
of death.
The United States remains one of the very few liberal democracies that
operate the death penalty. However, there has been a gradual movement in
the Supreme Court against the use of the death penalty in certain circum-
stances. In 1988 the Court decided that an offender who committed murder
when under the age of sixteen should not be executed (Thompson v. Oklahoma),
but in the following year the Court allowed the execution of a person who
was under the age of eighteen when the crime was committed (Stanford v.
Kentucky) and of a mentally retarded offender, because there was no ‘national
consensus’ to the contrary (Penry v. Lynaugh). But in Atkins v. Virginia, in 2002,