In Furman v. Georgia, the U.S Supreme Court ruled in 1972 that the death penalty, as it was then administered, constituted cruel and unusual punishment and thus violated the Eighth Amendment of the Constitution. The case involved William Henry Furman who had been convicted for murder in Georgia and sentenced to death. In a highly fragmented ruling with each justice writing his own opinion, five justices agreed that arbitrary application of capital punishment was unconstitutional but disagreed on why or what should be done about it. This decision led to a temporary de facto moratorium on executions across America until states could revise their laws to address concerns raised by this landmark case regarding arbitrariness and discrimination in imposing capital punishment.

The dissenting opinion in Furman v. Georgia argued that the death penalty does not inherently violate the Eighth Amendment's prohibition of cruel and unusual punishment. The justices contended that capital punishment has been accepted throughout history, both within the United States and globally, indicating its societal acceptance as a form of retribution for certain heinous crimes. They also pointed out that it is up to individual states to decide their own criminal penalties based on local values and norms, rather than having them dictated by federal law or court decisions. Furthermore, they expressed concern about judicial overreach into legislative territory if courts were allowed to determine which punishments are acceptable or unacceptable under the Constitution. Finally, they noted that there was no clear evidence showing an emerging national consensus against capital punishment at this time.