Gregg v. Georgia eText - Primary Source

Primary Source

Troy Leon Gregg challenged the death penalty sentence handed out to him by a Georgia court of law, but the U.S. Supreme Court upheld the ruling. © THE BETTMANN ARCHIVE/CORBIS. REPRODUCED BY PERMISSION.Troy Leon Gregg challenged the death penalty sentence handed out to him by a Georgia court of law, but the U.S. Supreme Court upheld the ruling. © THE BETTMANN ARCHIVE/CORBIS. REPRODUCED BY PERMISSION. Published by Gale Cengage © THE BETTMANN ARCHIVE/CORBIS. REPRODUCED BY PERMISSION.

Supreme Court decision

By: Potter Stewart, William Brennan Jr., and Thurgood Marshall

Date: July 2, 1976

Source: Stewart, Potter, William Brennan Jr., and Thurgood Marshall. Gregg v. Georgia. 428 U.S. 153 (1976). Available online at http://laws.findlaw.com/us/428/153.html; website home page: http://www.findlaw.com (accessed April 16, 2003).

About the Authors: Potter Stewart (1915–1985) graduated from Yale Law School in 1941. He practiced law until he was nominated by President Dwight Eisenhower (served 1953–1961) for the U.S. Court of Appeals in 1954 and then for the Supreme Court in 1958. He retired in 1981. William Brennan Jr. (1906–1997) graduated from Harvard Law School in 1931. After practicing law for nearly twenty years, he was appointed first to the New Jersey Superior Court and then to the New Jersey Supreme Court, before being nominated for the U.S. Supreme Court in 1956 by President Eisenhower.

Thurgood Marshall (1908–1993) graduated from Howard University Law School in 1933. In 1967, he became the first African American to serve on the U.S. Supreme Court when he was nominated by President Lyndon Johnson (served 1963–1969). He retired from the Court in 1991.

Introduction

The Eighth Amendment to the U.S. Constitution reads "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." There is no clear definition, however, of the term "cruel and unusual punishments."

When the Constitution was created, many jurisdictions borrowed from the English law, which allowed hundreds of crimes to be punished with the death penalty. It appeared that the Constitution would not ban the death penalty as being unusual. The English statute from which it was borrowed aimed at prohibiting penalties such as beheading, burning at the stake, and drawing and quartering. Furthermore, the Fifth Amendment states that no one shall "be deprived of life … without due process of law," which seems to recognize capital punishment.

The Supreme Court, however, was not quick to recognize the validity of capital punishment. In the late 1800s, the Court ruled that both the firing squad and the electric chair did not constitute cruel and unusual punishment, but passed on deciding the validity of the death penalty. Eventually, American society started limiting (if not abolishing) the list of crimes for which the death penalty was automatic.

By the late 1960s, critics of the death penalty questioned whether it deterred crime and produced studies indicating that it was applied capriciously. Furthermore, they noted that African Americans were much more likely to be sentenced to death than whites for the same crimes, and that the race of the victim played a role, as those who killed whites were more likely to die.

In Furman v. Georgia (1972), the Supreme Court struck down the death penalty as cruel and unusual. Following this ruling, many states began passing new death penalty laws that provided more guidance and mandating that certain "aggravating factors" had to be found for the death penalty to apply. Such a law was tested in Gregg v. Georgia (1976).

Significance

The Supreme Court upheld the death penalty as it was used in Georgia, holding that the safeguards imposed, the new requirements, and the Georgia Supreme Court's mandatory review did not violate the Eighth Amendment. Two justices did dissent though, arguing that it was excessive and unnecessary. Even the majority admitted that the Eighth Amendment and the Constitution as a whole was supposed to evolve. Since Gregg, the death penalty itself has always been upheld. However, the death penalty for certain crimes, such as rape or aiding and abetting a murder, has been struck down on some occasions.

The imposition of the death penalty in the United States is mostly carried out on the state level and the number of executions varies widely, with Texas having carried out hundreds and many other states having carried out none. The death penalty system is also maintained very unevenly. In some states, one is given enough assistance to receive a fair trial, while in other ones, lawyers fall asleep during trial and are paid paltry sums for their services. (One's lawyer falling asleep during the trial was not held to be "reversible error" and so the defendant, after conviction, did not get a new trial.)

In 2000, Illinois governor George Ryan ordered a moratorium on Illinois's death penalty. In 2003 Ryan pardoned four men sentenced to death and commuted the sentences of the other 156 death-row inmates to life imprisonment. Meanwhile, other states and the federal courts have moved to speed up executions. Clearly, the death penalty is not going to go away and it will still continue to provoke controversy.

Primary Source: Gregg v. Georgia [excerpt]

SYNOPSIS: The opinion opens by noting the nature of the aggravating circumstances that must be found before the death penalty can be imposed. Justice Potter Stewart notes that legislative judgments must be presumed to be constitutional, holds that the death penalty is not per se unconstitutional, and upholds the method by which Georgia uses it. Justice William Brennan Jr. dissents, arguing that the death penalty cannot constitute justice. Justice Thurgood Marshall holds that the death penalty does not deter crime and is unconstitutional.

Judgment of the Court, and opinion of Mr. Justice Stewart, Mr. Justice Powell, and Mr. Justice Stevens, announced by Mr. Justice Stewart.…

… Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute. The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to impose that sentence.… If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found.…

In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case.…

If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration.…

… We now hold that the punishment of death does not invariably violate the Constitution.…

… The American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing "tortures" and other "barbarous" methods of punishment." …

But the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner.…

… Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment.… [T]his assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.

But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying the Eighth Amendment." … This means, at least, that the punishment not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain.… Second, the pun ishment must not be grossly out of proportion to the severity of the crime.…

Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.

This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards.… A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience.…

… We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question.

The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England.…

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes.… The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases.…

And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.

For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se.…

The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person.…

As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment.…

The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.

In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.…

Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive.…

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.

Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability.… When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed.… But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.…

We now turn to consideration of the constitutionality of Georgia's capital-sentencing procedures.…

… The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.

For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.

It is so ordered.…

Mr. Justice Brennan, dissenting.…

This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, "moral concepts" require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.… I emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings—a punishment must not be so severe as to be degrading to human dignity. A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause.…

… For three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and unusual punishment. I perceive no principled basis for this limitation. Death for whatever crime and under all circumstances "is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity.… An executed person has indeed 'lost the right to have rights.'" … Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.…

The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity." … As such it is a penalty that "subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause]." I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. "Justice of this kind is obviously no less shocking than the crime itself, and the new 'official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first." …

Mr. Justice Marshall, dissenting.…

In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive.… And second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable.…

… An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it.… The in quiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty—life imprisonment—would do as well.…

The two purposes that sustain the death penalty as nonexcessive in the Court's view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment.…

The available evidence, I concluded in Furman, was convincing that "capital punishment is not necessary as a deterrent to crime in our society." …

… The evidence I reviewed in Furman remains convincing, in my view, that "capital punishment is not necessary as a deterrent to crime in our society." … The justification for the death penalty must be found elsewhere.

The other principal purpose said to be served by the death penalty is retribution.… It is this notion that I find to be the most disturbing aspect of today's unfortunate decisions.

The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and in this sense the notion is quite obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment. It is the question whether retribution can provide a moral justification for punishment—in particular, capital punishment—that we must consider.…

This statement is wholly inadequate to justify the death penalty.… It simply defies belief to sug gest that the death penalty is necessary to prevent the American people from taking the law into their own hands.…

… But the implication of the statements appears to me to be quite different—namely, that society's judgment that the murderer "deserves" death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment.… The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as Justices Stewart, Powell, and Stevens remind us, "the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society." … To be sustained under the Eighth Amendment, the death penalty must "compor[t] with the basic concept of human dignity at the core of the Amendment" …; the objective in imposing it must be "[consistent] with our respect for the dignity of [other] men." … Under these standards, the taking of life "because the wrongdoer deserves it" surely must fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth.

The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments.

Further Resources

BOOKS

Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass.: Harvard University Press, 2002.

Bosco, Antoinette. Choosing Mercy: A Mother of Murder Victims Pleads to End the Death Penalty. Maryknoll, N.Y.: Orbis, 2001.

Jackson, Jesse, and Bruce Shapiro. Legal Lynching: The Death Penalty and America's Future. New York: The New Press, 2001.

Mello, Michael. Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall. Boston: Northeastern University Press, 1996.

Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton, N.J.: Princeton University Press, 2001.

Winters, Paul A. The Death Penalty: Opposing Viewpoints, 3rd ed. San Diego: Greenhaven, 1997.

PERIODICALS

Bailey, William C., and Ruth P. Lott. "Crime, Punishment and Personality: An Examination of the Deterrence Question." Journal of Criminal Law and Criminology 67, no. 1, 1976, 99–109.

WEBSITES

"The Death Penalty in America: Twenty-five Years After Gregg v. Georgia." Death Penalty, Amnesty International. Available online at ; website home page: http://www.amnestyusa.org/abolish/ (accessed April 16, 2003).