Gregg v. Georgia, 428 U.S. 153 (1976), argued 31 Mar. 1976, decided 2 July 1976 by a vote of 7 to 2; Stewart announced the decision in an opinion joined by Powell and Stevens; White, Burger, Rehnquist, and Blackmun concurring; Brennan and Marshall in dissent. With two companion cases from Florida and Texas, the Supreme Court reaffirmed the constitutionality of the death penalty in the wake of Furman v. Georgia (1972). The justices in Gregg upheld statutes that guide judge and jury when imposing the death penalty. The Court rejected claims that capital punishment was unconstitutional per se but implied strongly that mandatory death penalty statutes would violate the Eighth Amendment's proscription of cruel and unusual punishment. Woodson v. North Carolina (1976) decided the same day, specifically outlawed the mandatory death sentence.

Gregg had been convicted of two counts of armed robbery and two counts of murder. The Georgia death penalty statute provided guidelines for the jury to follow in the sentencing stage of a bifurcated trial. The statute required the jury to find beyond a reasonable doubt and to specify in writing that at least one of ten specified aggravating circumstances existed before it could impose the death penalty. The aggravating circumstances included whether the accused (1) created a great risk of death to more than one person in a public place; (2) acted as either the agent of or the principal for another in the commission of a murder; (3) had a prior conviction for a capital felony; (4) had escaped from custody; or (5) had killed a firefighter or a criminal justice system officer in the performance of that officer's duties. The Georgia Supreme Court had previously struck down as insufficiently clear and objective an aggravating circumstance in which the offender had “a substantial history of serious assaultive criminal convictions.”

The Georgia statute also required consideration of such mitigating circumstances as the offender's youth, cooperation with the police, and emotional state at the time of the offense. And it provided mandatory review of death sentences by the Georgia Supreme Court to consider whether (1) the sentence was influenced by passion, prejudice, or any other arbitrary factor; (2) the evidence supported the finding of an aggravated circumstance; and (3) the penalty was excessive or disproportionate in relation to similar cases and defendants.

The trial judge in Gregg advised the jury that it could recommend the death sentence or life imprisonment for each count and that it was free to consider mitigating as well as aggravating circumstances. Specifically, he instructed the jury that it could not impose the death sentence unless it found beyond a reasonable doubt that the murders were committed in one or more of the three applicable aggravating circumstances, that is, during the commission of other capital crimes, for the purpose of receiving the victim's property, or that the crime was outrageously heinous. The jury found the first two of these aggravating circumstances and imposed the death penalty on all counts. The Georgia Supreme Court found that the sentences for murder did not result from prejudice or other arbitrary factors and that they were not excessive in relation to the crime. But it reversed the sentences for robbery on the ground that the death penalty was rarely imposed for armed robbery in Georgia.

For the Supreme Court, Justice Potter Stewart declared that the Eighth Amendment incorporated a “basic concept of human dignity.” He found the death penalty was not cruel and unusual per se. The Fifth and Fourteenth Amendments' Due Process Clauses imply it. More important, the concept of dignity is consistent with the purposes of deterrence and of retribution. In light of evolving standards of decency, the penalty, according to Stewart, is constitutional when it is proportional to the severity of the crime (not arbitrary) and is not a wanton infliction of pain. Legislatures need not prove that the death penalty deters, nor need they select the least severe penalty possible. Legislative choices of penalties thus carry a heavy presumption of validity. Stewart also emphasized that constitutional acknowledgment and public acceptance of the death penalty strengthen its presumptive validity and that retribution is a valid legislative consideration.

The Georgia statute, according to Stewart, effectively prevents arbitrary and disproportionate death sentences (1) because the bifurcated procedure allows full exploration of the evidence relating to the penalty; (2) because the sentencing body must make specific factual findings to support the result; and (3) because state supreme court review insures comparability and proportionality among defendants who receive the death penalty. Stewart rejected the argument that prosecutorial discretion, plea bargaining and executive clemency, which introduce elements of randomness that comparability studies will not detect, made the death penalty arbitrary and hence in violation of the Eighth Amendment. He also endorsed Georgia's requirement that the sentencing body consider a broad scope of evidence and argument before determining the sentence.

Justice Byron White, joined by Warren Burger and William Rehnquist, stated that Gregg had failed in his burden of showing that the Georgia Supreme Court had not in this case insured against discriminatory, freakish, or wanton administration of the death penalty. Nor had he demonstrated that the Georgia Supreme Court could not adequately do so in any and all cases. White also insisted that rational considerations, for example, the strength of evidence and the likelihood that the jury would in fact impose the penalty, determine the prosecutor's discretionary decision whether to seek the death penalty. Therefore, limited prosecutorial discretion did not make the penalty unconstitutionally arbitrary.

Basic criticisms of the reasoning in Gregg focus on the plurality's failure to connect persuasively its initial claim that the Eighth Amendment embodies a basic concept of human dignity with its conclusion that sentences may consider a wide range of information in deciding whether to apply the penalty. If, in other words, human dignity stands as an independent moral criterion for deciding when a punishment is cruel and unusual, then the plurality should have read into the amendment the specific moral and factual conditions that aggravate and mitigate the case for capital punishment.

By failing to do so, the Supreme Court gave little guidance to legislatures attempting to draft a death penalty statute with respect to (1) the criteria for choosing aggravating and mitigating circumstances; (2) the breadth of discretion sentencing bodies should retain once the circumstances are known; and (3) how the sentencing body will in practice determine whether a given circumstance does or does not exist. Indeed, without settling such matters it is difficult to see how an appellate court on mandatory review can determine that the requirement for comparability has been met, except by resorting to gross statistical comparisons. Such comparisons would violate the Court's requirement that juries take account of mitigating circumstances. A mandatory death penalty applied in narrowly defined circumstances would apparently achieve proportionality more effectively, but Woodson v. North Carolina struck down mandatory sentences precisely because they would not permit considering mitigating circumstances.

It is equally difficult to square the autonomous human dignity standard with the plurality's endorsement of retribution and deterrence. Penological evidence does not support the proposition that the death penalty serves effectively as either a general or a specific deterrent, and retribution lies too close to vengeance to accept as an unquestioned component of human dignity. Yet the plurality made no serious attempt to defend deterrence or retribution on either rational or human‐dignity grounds. Similarly, the obvious randomizing tendencies introduced by prosecutorial discretion, plea bargaining, and executive clemency cried out for a human‐dignity defense, but the plurality dismissed this difficulty without serious discussion. In short, Gregg failed to specify conditions and procedures for restricting in practice the arbitrariness it condemned. Justices William Brennan and Thurgood Marshall noted these points in dissent.

Bibliography

Hugo Adam Bedau, ed., The Death Penalty in America (1982).
Welsh S. White , The Death Penalty in the Eighties: An Examination of the Modern System of Capital Punishment (1987).

Lief H. Carter

GREGG V. GEORGIA

Modern U.S. death penalty jurisprudence begins with the U.S. Supreme Court's decision in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976). In that landmark case, the Court rejected the idea that capital punishment is inherently cruel and unusual punishment under the eighth amendment. In addition, it endorsed new state death penalty statutes that sought to address the criticisms that the Court had raised in furman v. georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed.2d 346 (1972). These statutes split the criminal trial into a guilt phase and a penalty phase, gave jurors specific aggravating and mitigating factors to consider in deliberating the death penalty, and mandated appellate review with designated factors for the court to consider. Finally, the states removed capital punishment as a sentencing option for crimes other than murder. Since Gregg, the issues surrounding the death penalty have turned on procedural fairness rather than questions of societal values.

By the early 1970s, the death penalty had been removed from the statute books in many countries, including Austria, Denmark, Great Britain, Portugal, Switzerland, Brazil, and Venezuela. In the United States, criticism of the arbitrary administration of capital punishment and its application to crimes other than murder led to judicial challenges based on the Eighth Amendment's Cruel and Unusual Punishment proscription. The number of executions had dwindled, and public opinion polls suggested that the death penalty was no longer as popular. Therefore, opponents were optimistic when the U.S. Supreme Court struck down three death sentences in Furman.However, the Court's manner of deciding the case revealed a split in the way that the justices looked at the death penalty. Furman, which came on a 5–4 vote, was issued as a per curiam decision, which takes the form of a brief, unsigned opinion. Such a decision does not have as great a precedential value as a signed opinion, as it indicates that the court was deeply divided over the reasons that went into its ultimate decision either to affirm or reverse a decision. Each justice filed a separate opinion, with only Justices william brennan and thurgood marshall declaring that the death penalty is intrinsically cruel and unusual punishment. Others on the Court who reversed the sentences indicated that capital punishment might be constitutional if the states administered it fairly and rationally so as to serve legitimate societal needs.

Georgia set out to address these concerns, and its legislature passed a comprehensive death-penalty-reform law. It established a bifurcated trial process, in which guilt or innocence is to be decided first. If the defendant were found guilty of a capital crime, the jury then entered a penalty phase. The state developed a list of 14 "aggravating circumstances," any one of which could justify the death penalty. The jury had to findbeyond a reasonable doubt that an aggravating circumstance applied. The defendant was also given the opportunity to present "mitigating circumstances" to the jury in hopes of overcoming the aggravating circumstances. These included the youth of the defendant, the defendant's cooperation with police, and the defendant's emotional state at the time of the crime. If the jury imposed the death penalty, the Georgia Supreme Court was mandated to review the decision. It was told to consider whether passion or prejudice influenced the sentence, whether the evidence of aggravating circumstances was sufficient, and whether the penalty was disproportional or excessive in comparison to similar cases and defendants.

The new law was applied at the trial of Troy Gregg for two counts each of armed robbery and murder. Gregg was convicted, and during the penalty phase the prosecutor offered evidence of aggravating circumstances. The jury found beyond a reasonable doubt that Gregg had committed the murders during the commission of another capital crime and for the purpose of taking a victim's property. These two circumstances sustained the death-penalty verdict. On appeal, the Georgia Supreme Court upheld the sentence, finding that the verdict was fair, based on the three factors it was instructed to review. However, it sustained the death penalty on only the second aggravating circumstance. It threw out the armed-robbery circumstance because the death penalty had rarely been imposed for that crime. Gregg then appealed to the U.S. Supreme Court.

The U.S. Supreme Court upheld the decision on a 7–2 vote. Justice potter stewart announced the judgment of the Court in an opinion joined by two other justices. Four justices agreed with the affirmance, but for different reasons. Stewart retraced the Furman decision and noted that only two justices had taken an absolutist position against the death penalty. The Court then declared that the death penalty was not inherently cruel and unusual punishment. The Eighth Amendment incorporated a "basic concept of dignity," which was consistent with the purposes of deterrence and of retribution. As long as it was proportional to the severity of the crime, the death penalty was not unconstitutional. Stewart also stated that legislatures do not have to prove that capital punishment deters crime; nor must they enact the least severe penalty possible. Finally, Stewart noted a telling change in U.S. public opinion, demonstrating that the public supported capital punishment. The rush of legislatures to modify their death penalty statutes did not take place in a vacuum.

Having disposed of the threshold issue, Stewart examined the Georgia statutory framework. He found the framework constitutional, as each element worked to prevent the arbitrary and disproportionate death sentences criticized in Furman. Gregg had argued that other elements undercut the statutory framework. These included prosecutorial discretion, plea-bargaining and executive clemency. Stewart rejected these arguments, noting that the Georgia law required the jury to consider aggravating and mitigating factors as applied to the individual defendant.

Justices Brennan and Marshall again dissented on absolutist grounds, arguing that the time had passed for the state to execute criminals.

further readings

Hall, Kermit L. 1989. The Magic Mirror: Law in American History. New York: Oxford Univ. Press.

Stephens, Otis H., Jr., and John M. Scheb III. 1993. American Constitutional Law. St. Paul, Minn.: West.