Gregg v. Georgia
428 U.S. 153 (1976)

Annotate this Case

U.S. Supreme Court

Gregg v. Georgia, 428 U.S. 153 (1976)

Gregg v. Georgia

No. 74-6257

Argued March 31, 1976

Decided July 2, 1976

428 U.S. 153

CERTIORARI TO THE SUPREME COURT OF GEORGIA

Syllabus

Petitioner was charged with committing armed robbery and murder on the basis of evidence that he had killed and robbed two men. At the trial stage of Georgia's bifurcated procedure, the jury found petitioner guilty of two counts of armed robbery and two counts of murder. At the penalty stage, the judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count; that it was free to consider mitigating or aggravating circumstances, if any, as presented by the parties; and that it would not be authorized to consider imposing the death sentence unless it first found beyond a reasonable doubt (1) that the murder was committed while the offender was engaged in the commission of other capital felonies, viz., the armed robberies of the victims; (2) that he committed the murder for the purpose of receiving the victims' money and automobile; or (3) that the murder was "outrageously and wantonly vile, horrible and inhuman" in that it "involved the depravity of [the] mind of the defendant." The jury found the first and second of these aggravating circumstances, and returned a sentence of death. The Georgia Supreme Court affirmed the convictions. After reviewing the trial transcript and record and comparing the evidence and sentence in similar cases, the court upheld the death sentences for the murders, concluding that they had not resulted from prejudice or any other arbitrary factor, and were not excessive or disproportionate to the penalty applied in similar cases, but vacated the armed robbery sentences on the ground, inter alia, that the death penalty had rarely been imposed in Georgia for that offense. Petitioner challenges imposition of the death sentence under the Georgia statute as "cruel and unusual" punishment under the Eighth and Fourteenth Amendments. That statute, as amended following Furman v. Georgia,408 U. S. 238 (where this Court held to be violative of those Amendments death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty), retains the death penalty for murder and five other crimes. Guilt or innocence is determined in the first stage

Page 428 U. S. 154

of a bifurcated trial, and, if the trial is by jury, the trial judge must charge lesser included offenses when supported by any view of the evidence. Upon a guilty verdict or plea, a presentence hearing is held where the judge or jury hears additional extenuating or mitigating evidence and evidence in aggravation of punishment if made known to the defendant before trial. At least one of 10 specified aggravating circumstances must be found to exist beyond a reasonable doubt and designated in writing before a death sentence can be imposed. In jury cases, the trial judge is bound by the recommended sentence. In its review of a death sentence (which is automatic), the State Supreme Court must consider whether the sentence was influenced by passion, prejudice, or any other arbitrary factor; whether the evidence supports the finding of a statutory aggravating circumstance; and whether the death sentence "is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." If the court affirms the death sentence, it must include in its decision reference to similar cases that it has considered.

Held: The judgment is affirmed. Pp. 428 U. S. 168-207; 428 U. S. 220-226; 428 U. S. 227.

233 Ga. 117, 210 S.E.2d 659, affirmed.

MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS concluded that:

(1) The punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments. Pp. 428 U. S. 168-187.

(a) The Eighth Amendment, which has been interpreted in a flexible and dynamic manner to accord with evolving standards of decency, forbids the use of punishment that is "excessive" either because it involves the unnecessary and wanton infliction of pain or because it is grossly disproportionate to the severity of the crime. Pp. 428 U. S. 169-173.

(b) Though a legislature may not impose excessive punishment, it is not required to select the least severe penalty possible, and a heavy burden rests upon those attacking its judgment. Pp. 428 U. S. 174-176.

(c) The existence of capital punishment was accepted by the Framers of the Constitution, and, for nearly two centuries, this Court has recognized that capital punishment for the crime of murder is not invalid per se. Pp. 428 U. S. 176-178.

Page 428 U. S. 155

(d) Legislative measures adopted by the people's chosen representatives weigh heavily in ascertaining contemporary standards of decency; and the argument that such standards require that the Eighth Amendment be construed as prohibiting the death penalty has been undercut by the fact that, in the four years since Furman, supra, was decided, Congress and at least 35 States have enacted new statutes providing for the death penalty. Pp. 428 U. S. 179-183.

(e) Retribution and the possibility of deterrence of capital crimes by prospective offenders are not impermissible considerations for a legislature to weigh in determining whether the death penalty should be imposed, and it cannot be said that Georgia's legislative judgment that such a penalty is necessary in some cases is clearly wrong. Pp. 428 U. S. 183-187.

(f) Capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime. P. 428 U. S. 187.

2. The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance, concerns best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of that information. Pp. 428 U. S. 188-195.

3. The Georgia statutory system under which petitioner was sentenced to death is constitutional. The new procedures, on their face, satisfy the concerns of Furman, since, before the death penalty can be imposed, there must be specific jury findings as to the circumstances of the crime or the character of the defendant, and the State Supreme Court thereafter reviews the comparability of each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. Petitioner's contentions that the changes in Georgia's sentencing procedures have not removed the elements of arbitrariness and capriciousness condemned by Furman are without merit. Pp. 428 U. S. 196-207.

(a) The opportunities under the Georgia scheme for affording an individual defendant mercy -- whether through the prosecutor's unfettered authority to select those whom he wishes to prosecute for capital offenses and to plea bargain with them; the jury's option to convict a defendant of a lesser included offense; or the

Page 428 U. S. 156

fact that the Governor or pardoning authority may commute a death sentence -- do not render the Georgia statute unconstitutional. P. 428 U. S. 199.

(b) Petitioner's arguments that certain statutory aggravating circumstances are too broad or vague lack merit, since they need not be given overly broad constructions or have been already narrowed by judicial construction. One such provision was held impermissibly vague by the Georgia Supreme Court. Petitioner's argument that the sentencing procedure allows for arbitrary grants of mercy reflects a misinterpretation of Furman, and ignores the reviewing authority of the Georgia Supreme Court to determine whether each death sentence is proportional to other sentences imposed for similar crimes. Petitioner also urges that the scope of the evidence and argument that can be considered at the presentence hearing is too wide, but it is desirable for a jury to have as much information as possible when it makes the sentencing decision. Pp. 428 U. S. 200-204.

(c) The Georgia sentencing scheme also provides for automatic sentence review by the Georgia Supreme Court to safeguard against prejudicial or arbitrary factors. In this very case, the court vacated petitioner's death sentence for armed robbery as an excessive penalty. Pp. 428 U. S. 204-206.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST, concluded that:

1. Georgia's new statutory scheme, enacted to overcome the constitutional deficiencies found in Furman v. Georgia,408 U. S. 238, to exist under the old system, not only guides the jury in its exercise of discretion as to whether or not it will impose the death penalty for first-degree murder, but also gives the Georgia Supreme Court the power and imposes the obligation to decide whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. If that court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish that the Georgia Supreme Court failed properly to perform its task in the instant case, or that it is incapable of performing its task adequately in all cases. Thus, the death penalty may be carried out under the Georgia legislative scheme consistently with the Furman decision. Pp. 428 U. S. 220-224.

Page 428 U. S. 157

2. Petitioner's argument that the prosecutor's decisions in plea bargaining or in declining to charge capital murder are standardless, and will result in the wanton or freakish imposition of the death penalty condemned in Furman, is without merit, for the assumption cannot be made that prosecutors will be motivated in their charging decisions by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts; the standards by which prosecutors decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Pp. 428 U. S. 224-225.

3. Petitioner's argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment is untenable for the reasons stated in MR. JUSTICE WHITE's dissent in Roberts v. Louisiana, post at 428 U. S. 350-356. P. 428 U. S. 226.

MR. JUSTICE BLACKMUN concurred in the judgment. See Furman v. Georgia, 408 U.S. at 408 U. S. 405-414 (BLACKMUN, J., dissenting), and id. at 408 U. S. 375 (BURGER, C.J., dissenting); id. at 408 U. S. 414 (POWELL, J., dissenting); id. at 408 U. S. 465 (REHNQUIST, J., dissenting). P. 428 U. S. 227.

Judgment of the Court, and opinion of STEWART, POWELL, and STEVENS, JJ., announced by STEWART, J., BURGER, C.J., and REHNQUIST, J., filed a statement concurring in the judgment, post, p. 428 U. S. 226. WHITE, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 428 U. S. 207. BLACKMUN, J., filed a statement concurring in the judgment, post, p. 428 U. S. 227. BRENNAN, J., post, p. 428 U. S. 227, and MARSHALL, J., post, p. 428 U. S. 231, filed dissenting opinions.

Page 428 U. S. 158

Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE STEWART.

The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.

I

The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that, on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p.m.

Page 428 U. S. 159

A short time later, the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.

On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in Asheville, N.C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona,384 U. S. 436 (1966), and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing Simmons and Moore. He justified the slayings on grounds of self-defense. The next day, while being transferred to Lawrenceville, Ga., the petitioner and Allen were taken to the scene of the shootings. Upon arriving there, Allen recounted the events leading to the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. The petitioner then took his pistol in hand and positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward the car, the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen.

A medical examiner testified that Simmons died from a bullet wound in the eye, and that Moore died from bullet wounds in the cheek and in the back of the head. He further testified that both men had several bruises

Page 428 U. S. 160

and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Although Allen did not testify, a police detective recounted the substance of Allen's statements about the slayings, and indicated that, directly after Allen had made these statements, the petitioner had admitted that Allen's account was accurate. The petitioner testified in his own defense. He confirmed that Allen had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simmons and Moore because of fear and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife. [Footnote 1]

The trial judge submitted the murder charges to the jury on both felony murder and nonfelony murder theories. He also instructed on the issue of self-defense, but declined to instruct on manslaughter. He submitted the robbery case to the jury on both an armed robbery theory and on the lesser included offense of robbery by intimidation. The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.

At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner's lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count.

Page 428 U. S. 161

The judge further charged the jury that, in determining what sentence was appropriate, the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.

Finally, the judge instructed the jury that it "would not be authorized to consider [imposing] the penalty of death" unless it first found beyond a reasonable doubt one of these aggravating circumstances;

"One -- That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore]."

"Two -- That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment."

"Three -- The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the defendant."

Tr. 476-477. Finding the first and second of these circumstances, the jury returned verdicts of death on each count.

The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. 233 Ga. 117, 210 S.E.2d 659 (1974). After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases. [Footnote 2] The death

Page 428 U. S. 162

sentences imposed for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense, and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders. Id. at 127, 210 S.E.2d at 667.

We granted the petitioner's application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as "cruel and unusual" punishment in violation of the Eighth and the Fourteenth Amendments. 423 U.S. 1082 (1976).

II

Before considering the issues presented, it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty. [Footnote 3] The Georgia statute, as amended after our decision in Furman v. Georgia,408 U. S. 238 (1972), retains the death penalty for six categories of crime: murder, [Footnote 4] kidnaping for ransom or where

Page 428 U. S. 163

the victim is harmed, armed robbery, [Footnote 5] rape, treason, and aircraft hijacking. [Footnote 6] Ga.Code Ann. §§ 26-1101, 26-1311 26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital defendant's guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial.

If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668, 47 S.E.2d 862 (1948). See Linder v. State, 132 Ga.App. 624, 625, 208 S.E.2d 630, 631 (1974). After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing:

"[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that

Page 428 U. S. 164

only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed."

§ 27-2503 (Supp. 1975). The defendant is accorded substantial latitude as to the types of evidence that he may introduce. See Brown v. State, 235 Ga. 64, 647-650, 220 S.E.2d 922, 925-926 (1975). [Footnote 7] Evidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247, 253, 206 S.E.2d 12, 17 (1974). [Footnote 8]

In the assessment of the appropriate sentence to be imposed, the judge is also required to consider or to include in his instructions to the jury

"any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances which may be supported by the evidence. . . ."

§ 27-2534.1(b) (Supp. 1975). The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute. 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

Page 428 U. S. 165

in the statute. [Footnote 9] The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to

Page 428 U. S. 166

impose that sentence. § 23102 (Supp. 1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. § 27-253.1(c) (Supp. 1975). In jury cases, the trial judge is bound by the jury's recommended sentence. §§ 23102, 27-2514 (Supp. 1975).

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. The court is directed to consider "the punishment as well as any errors enumerated by way of appeal," and to determine:

"(1) Whether the sentence of death was imposed

Page 428 U. S. 167

under the influence of passion, prejudice, or any other arbitrary factor, and"

"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27.2534.1(b), and"

"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

§ 27-2537 (Supp. 1975). 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. § 27-2537(e) (Supp. 1075). [Footnote 10]

A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. § 27-2537(a) (Supp. 1975). The report is in the form of a 6 1/2-page questionnaire designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant's representation, whether race played a role in the trial, and, whether, in the trial court's judgment, there was any doubt about

Page 428 U. S. 168

the defendant' guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed, there remains the possibility of executive clemency. [Footnote 11]

III

We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. In 428 U. S. we will consider the sentence of death imposed under the Georgia statutes at issue in this case.

The Court, on a number of occasions, has both assumed and asserted the constitutionality of capital punishment. In several cases, that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment. [Footnote 12] But until Furman v. Georgia,408 U. S. 238 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and

Page 428 U. S. 169

unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se; [Footnote 13] two Justices would have reached the opposite conclusion; [Footnote 14] and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed. [Footnote 15] We now hold that the punishment of death does not invariably violate the Constitution.

A

The history of the prohibition of "cruel and unusual" punishment already has been reviewed at length. [Footnote 16] The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id. at 860. The

Page 428 U. S. 170

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. Id. at 842. [Footnote 17]

In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to "torture" and other "barbarous" methods. See Wilkerson v. Utah,99 U. S. 130, 99 U. S. 136 (1879) ("[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment. . . ."); In re Kemmler,136 U. S. 436, 136 U. S. 447 (1890) ("Punishments are cruel when they involve torture or a lingering death. . . ."). See also Louisiana ex rel. Francis v. Resweber,329 U. S. 459, 329 U. S. 464 (1947) (second attempt at electrocution found not to violate

Page 428 U. S. 171

Eighth Amendment, since failure of initial execution attempt was "an unforeseeable accident" and "[t] here [was] no purpose to inflict unnecessary pain, nor any unnecessary pain involved in the proposed execution").

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. The Court early recognized that "a principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States,217 U. S. 349, 217 U. S. 373 (1910). Thus, the Clause forbidding

"cruel and unusual' punishments 'is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."

Id. at 217 U. S. 378. See also Furman v. Georgia, 408 U.S. at 408 U. S. 429-430 (POWELL, J., dissenting); Trop v. Dulles,356 U. S. 86, 356 U. S. 100-101 (1958) (plurality opinion).

In Weems, the Court addressed the constitutionality of the Philippine punishment of cadena temporal for the crime of falsifying an official document. That punishment included imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance. Although the Court acknowledged the possibility that "the cruelty of pain" may be present in the challenged punishment, 217 U.S. at 217 U. S. 366, it did not rely on that factor, for it rejected the proposition that the Eighth Amendment reaches only punishments that are "inhuman and barbarous, torture and the like." Id. at 217 U. S. 368. Rather, the Court focused on the lack of proportion between the crime and the offense:

"Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice

Page 428 U. S. 172

of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense."

Id. at 217 U. S. 366-367. [Footnote 18] Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the punishment of denationalization imposed upon a soldier who escaped from an Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, the plurality observed in dicta that "[f]ines, imprisonment and even execution may be imposed depending upon the enormity of the crime." 356 U.S. at 356 U. S. 100.

The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California,370 U. S. 660 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense. It held, in effect, that it is "cruel and unusual" to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: "Even one day in prison would be a cruel and unusual punishment for the crime' of having a common cold." Id. at 370 U. S. 667. Most recently, in Furman v. Georgia, supra, three Justices, in separate concurring opinions, found the Eighth Amendment applicable to procedures employed to select convicted defendants for the sentence of death.

It is clear from the foregoing precedents that the

Page 428 U. S. 173

Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oft-quoted phrase, "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, supra at 356 U. S. 101. See also Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968). Cf. Robinson v. California, supra at 370 U. S. 666. Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, see infra at 428 U. S. 175-176, this 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." Trop v. Dulles, supra at 356 U. S. 100 (plurality opinion). 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. Furman v. Georgia, supra, at 408 U. S. 392-393 (BURGER, C.J., dissenting). See Wilkerson v. Utah, 99 U.S. at 99 U. S. 136; Weems v. United States, supra, at 217 U. S. 381. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, at 356 U. S. 100 (plurality opinion) (dictum); Weems v. United States, supra, at 217 U. S. 367.

Page 428 U. S. 174

B

Of course, the requirements of the Eighth Amendment must be applied with an awareness o the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.

"Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment, and that there are punishments that the Amendment would bar whether legislatively approved or not."

Furman v. Georgia, 408 U.S. at 408 U. S. 313-314 (WHITE, J., concurring). See also id. at 408 U. S. 433 (POWELL, J., dissenting). [Footnote 19] But, while we have an obligation to insure that constitutional

Page 428 U. S. 175

bound are not overreached, we may not act as judges as we might as legislators.

"Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures."

Dennis v. United States,341 U. S. 494, 341 U. S. 525 (1951) (Frankfurter, J., concurring in affirmance of judgment). [Footnote 20]

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. "[I]n a democratic society, legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."

Page 428 U. S. 176

Furman v. Georgia, supra at 408 U. S. 383 (BURGER, C.J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, 408 U.S. at 408 U. S. 465-470 (REHNQUIST, J., dissenting), is enhanced where the specification of punishments is concerned, for "these are peculiarly questions of legislative policy." Gore v. United States,357 U. S. 386, 357 U. S. 393 (1968). Cf. Robinson v. California, 370 U.S. at 370 U. S. 664-665; Trop v. Dulles, 356 U.S. at 356 U. S. 103 (plurality opinion); In re Kemmler, 136 U.S. at 136 U. S. 447. Caution is necessary lest this Court become,

"under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country."

Powell v. Texas,392 U. S. 514, 392 U. S. 533 (1968) (plurality opinion). 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. See Furman v. Georgia, supra at 408 U. S. 461-4462 (POWELL, J., dissenting).

C

In the discussion to this point, we have sought to identify the principles and considerations that guide a court in addressing an Eighth Amendment claim. 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. The common law rule

Page 428 U. S. 177

imposed a mandatory death sentence on all convicted murderers. McGautha v. California,402 U. S. 183, 402 U. S. 197-198 (1971). And the penalty continued to be used into the 20th century by most American States, although the breadth of the common law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id. at 402 U. S. 199-200. See Woodson v. North Carolina, post at 428 U. S. 289-292.

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. C. 9, 1 Stat. 112 (1790). 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:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law. . . ."

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

Page 428 U. S. 178

often expressly, has recognized that capital punishment is not invalid per se. In Wilkerson v. Utah, 99 U.S. at 99 U. S. 134-135, where the Court found no constitutional violation in inflicting death by public shooting, it said:

"Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category within the meaning of the eighth amendment."

Rejecting the contention that death by electrocution was "cruel and unusual," the Court in In re Kemmler, supra at 136 U. S. 447, reiterated:

"[T]he punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."

Again, in Louisiana ex rel. Francis v. Resweber, 329 U.S. at 329 U. S. 464, the Court remarked:

"The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely."

And in Trop v. Dulles, 356 U.S. at 356 U. S. 99, Mr. Chief Justice Warren, for himself and three other Justices, wrote:

"Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . , the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. "

Page 428 U. S. 179

Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime, regardless of its depravity and impact on society. This view was accepted by two Justices. [Footnote 21] Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty, rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid. [Footnote 22]

The petitioners in the capital cases before the Court today renew the "standards of decency" argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.

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 [Footnote 23] have enacted new statutes that provide for the

Page 428 U. S. 180

death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death. [Footnote 24] These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punishment

Page 428 U. S. 181

itself has not been rejected by the elected representatives of the people.

In the only state-wide referendum occurring since Furman and brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, cert. denied, 406 U.S. 958 (1972), that the death penalty violated the California Constitution. [Footnote 25]

The jury also is a significant and reliable objective index of contemporary values, because it is so directly involved. See Furman v. Georgia, 408 U.S. at 408 U. S. 439-440 (POWELL, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1 (1966). The Court has said that

"one of the most important functions any jury can perform in making . . . a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system."

Witherspoon v. Illinois,391 U. S. 510, 391 U. S. 519 n. 15 (1968). It may be true that evolving standards have influenced juries in

Page 428 U. S. 182

recent decades to be more discriminating in imposing the sentence of death. [Footnote 26] But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. See Furman v. Georgia, supra at 408 U. S. 388 (BURGER, C.J., dissenting). Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974, at least 254 persons had been sentenced to death since Furman, [Footnote 27] and, by the end of March, 1976, more than 460 persons were subject to death sentences.

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. Trop v. Dulles, 356 U.S. at 356 U. S. 100 (plurality opinion). Although we cannot "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of

Page 428 U. S. 183

penology," Furman v. Georgia, supra, at 408 U. S. 451 (POWELL, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U.S. at 99 U. S. 135-136; In re Kemmler, 136 U.S. at 136 U. S. 447.

The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. [Footnote 28]

In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. [Footnote 29] 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.

"The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve,' then there are sown the seeds of anarchy -- of self-help, vigilante justice, and lynch law."

Furman v. Georgia, supra at 408 U. S. 308 (STEWART, J., concurring). "Retribution is no longer the dominant objective of the criminal law," Williams v. New York,337 U. S. 241, 337 U. S. 248 (1949), but neither is it a forbidden objective, nor one inconsistent with our respect for the dignity of men.

Page 428 U. S. 184

Furman v. Georgia, 408 U.S. at 408 U. S. 394-395 (BURGER, C. dissenting); id. at 408 U. S. 452-454 (POWELL, J., dissenting); Powell v. Texas, 392 U.S. at 392 U. S. 531, 392 U. S. 535-536 (plurality opinion). Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. [Footnote 30] 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. [Footnote 31] The result

Page 428 U. S. 185

simply have been inconclusive. As one opponent of capital punishment has said:

"[A]fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and, for systematic and easily visible reasons, cannot know, what the truth about this 'deterrent' effect may be. . . . "

"The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large), then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A 'scientific' -- that is to say, a soundly based -- conclusion is simply impossible, and no methodological path out of this tangle suggests itself."

C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 226 (1974).

Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, [Footnote 32] there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant

Page 428 U. S. 186

deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act. [Footnote 33] And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate. [Footnote 34]

The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, supra at 408 U. S. 403-405 (BURGER, C.J., dissenting). Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.

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

Page 428 U. S. 187

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. Furman v. Georgia, 408 U.S. at 408 U. S. 286-291 (BRENNAN, J., concurring); id. at 408 U. S. 306 (STEWART, J., concurring). When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama,287 U. S. 45, 287 U. S. 71 (1932); Reid v. Covert,354 U. S. 1, 354 U. S. 77 (1957) (Harlan, J., concurring in result). 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, [Footnote 35] 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.

IV

We now consider whether Georgia may impose the death penalty on the petitioner in this case.

Page 428 U. S. 188

A

While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. MR. JUSTICE WHITE concluded that

"the death penalty is exacted with great infrequency even for the most atrocious crimes, and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not."

408 U.S. at 408 U. S. 313 (concurring). Indeed, the death sentences examined by the Court in Furman were

"cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capital crimes], many just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Id. at 408 U. S. 309-310 (STEWART, J., concurring). [Footnote 36]

Page 428 U. S. 189

Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner. We have long recognized that,

"[f]or the determination of sentences, justice generally requires . . that there be taken into account the circumstances of the offense, together with the character and propensities of the offender."

Pennsylvania ex rel. Sullivan v. Ashe,302 U. S. 51, 302 U. S. 55 (1937). See also Williams v. Oklahoma,358 U. S. 576, 358 U. S. 585 (1959); Williams v. New York, 337 U.S. at 337 U. S. 247. [Footnote 37] Otherwise, "the system cannot function in a consistent and a rational manner." American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1(a), Commentary, p. 201 (App.Draft 1968). See also President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. 52-53 (Tent.Draft No. 2, 1954). [Footnote 38]

Page 428 U. S. 190

The cited studies assumed that the trial judge would be the sentencing authority. If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.

Jury sentencing has been considered desirable in capital cases in order

"to maintain a link between contemporary community values and the penal system -- a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.' [Footnote 39]"

But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. [Footnote 40] This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure -- one in which the

Page 428 U. S. 191

question of sentence is not considered until the determination of guilt has been made -- is the best answer. The drafters of the Model Penal Code concluded:

"[If a unitary proceeding is used], the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such, for example, as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt."

". . . The obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but, once guilt has been determined, opening the record to the further information that is relevant to sentence. This is the analogue of the procedure in the ordinary case when capital punishment is not in issue; the court conducts a separate inquiry before imposing sentence."

ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent.Draft No. 9, 1959). See also Spencer v. Texas,385 U. S. 554, 385 U. S. 567-569 (1967); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932,

Official Supreme Court caselaw is only found in the print version of the United States Reports. Justia caselaw is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.