The issue of arbitrariness of the death penalty was again brought before the Supreme Court in 1972 in Furman v. Georgia, Jackson v. Georgia, and Branch v. Texas (known collectively as the landmark case Furman v. Georgia (408 U. S. 238)). Furman, like McGautha, argued that capital cases resulted in arbitrary and capricious sentencing. Furman, however, was a challenge brought under the Eighth Amendment, unlike McGautha, which was a Fourteenth Amendment due process claim. With the Furman decision the Supreme Court set the standard that a punishment would be "cruel and unusual" if it were too severe for the crime, if it were arbitrary, if it offended society's sense of justice, or it if were not more effective than a less severe penalty.

In nine separate opinions, and by a vote of 5-4, the Court held that Georgia's death penalty statute, which gave the jury full discretion in sentencing, could result in arbitrary sentencing. The Court maintained that the scheme of punishment under the statute was thus "cruel and unusual" and violated the Eighth Amendment. As a result, the Supreme Court voided forty death penalty statutes on June 29, 1972, thereby commuting the sentences of 629 death row inmates in the United States and suspending the death penalty because existing statutes were no longer valid.