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

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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


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.


(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.


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

Primary Holding

The death penalty could be revived in Georgia, Florida, and Texas because the new law provided sufficient clarity and objectivity in defining which defendants could be eligible for capital punishment and gave juries sufficient discretion in choosing whether to apply it.


In 1972, the Supreme Court had ruled that the imposition of the death penalty under current systems of capital punishment violated the Eighth Amendment because of its arbitrary, unevenly imposed nature. This decision in Furman v. Georgia resulted in a moratorium on the death penalty while states that sought to retain capital punishment revised their systems for imposing it. Georgia, Florida, Texas, North Carolina, and Louisiana were five of the 35 states that amended their death penalty laws to comply with Furman.

In each of these states, a defendant who was sentenced to death under the new laws appealed the penalty on the grounds that capital punishment was categorically unconstititutional under the Eighth Amendment because it was cruel and unusual per se. The five cases were consolidated and heard together to determine whether the new death penalty systems in the five states were rational. Neither side was able to present conclusive evidence that the death penalty either deterred crime or failed to deter it. Still, the convicted defendants argued that it ran counter to human dignity, diverged from the current social consensus on the issue, and was disproportionate to the crimes committed.

Issues & Holdings

Issue: Whether the death penalty was unconstitutional per se under the Eighth Amendment as cruel and unusual punishment.
Holding: No. Trends in both the political process and the judgments of juries suggest that there is still a social consensus in favor of retaining the death penalty. There is no conclusive evidence that it fails in its objective of deterring crime, and it does not offend human dignity because some crimes are so severe that the only appropriate response is capital punishment. Moreover, the death penalty is not disproportionate to the crime of murder



  • Potter Stewart (Author)
  • Lewis Franklin Powell, Jr.
  • John Paul Stevens

Following the guidelines stated in Furman, the majority analyzed whether each state had instituted a sufficiently objective process for determining whether an individual was eligible for the death penalty. It also considered whether each state gave judges and jurors sufficient discretion in determining whether the death penalty was appropriate in a certain situation, having evaluated mitigating and aggravating factors. (The Justices did not feel that a jury was necessary in all sentencing determinations and suggested that a judge might provide greater consistency.) The majority also noted that appellate review of any death sentence was essential and that this review must consist of a genuine evaluation of whether proper procedures were followed and the sentence was objectively rational. In fact, appeals in all states are mandatory and cannot even be waived.

Without going into the details of each state's scheme here, the majority approved the systems in states that limited the criteria that could make an individual eligible for capital punishment while giving broad discretion to sentencers (judge or jury) regarding whether it should be imposed on a certain defendant. These states were Georgia, Florida, and Texas. By contrast, North Carolina and Louisiana provided a relatively vague list of factors that could make an individual eligible for the death penalty and limited the abiility of decision-makers to refrain from imposing it in a certain instance. The majority also held, based on historical evidence, that a mandatory death penalty is unconstitutional per se.


  • William Hubbs Rehnquist (Author)

Rehnquist felt that all five states met the guidelines under Furman and was not convinced that mandatory death penalties that removed discretion from judges and juries were per se unconstitutional. He argued that some arbitrariness was inevitable when juries impose the death penalty because there is no uniform system to compare their verdicts, and he did not feel that capital punishment merited any additional procedures beyond other criminal sentences.


  • Byron Raymond White (Author)
  • Warren Earl Burger
  • William Hubbs Rehnquist

Although he did not see the need to bifurcate death penalty cases into guilt and sentencing phases, White largely echoed the majority's view that capital punishment is not unconstitutional, based on legislative initiatives keeping it in place. He also noted that substantial judicial precedents and references to the death penalty in the Constitution suggested that it should not be categorically struck down. White recommended that most issues concerning the uniformity of its imposition should be left to legislatures to resolve.


  • Harry Andrew Blackmun (Author)


  • William Joseph Brennan, Jr. (Author)

Brennan would have struck down the death penalty per se, believing that it fails in its objective of deterring crime and does not serve a retributive purpose that is appropriate in current American society.


  • Thurgood Marshall (Author)

Agreeing with Brennan that the death penalty was unconstitutional, Marshall would follow his lead in voting against it in every capital punishment case that the Court would consider during his time on the bench.

Case Commentary

Mandatory death penalty statutes remain unconstitutional per se, but courts otherwise have wavered in how much discretion a jury should have during the sentencing phase of a capital trial. Often known as the July 2 cases, this group of decisions served as the origin of modern jurisprudence on capital punishment. Its application has been steadily restricted even further with time, including in cases involving mentally deficient defendants, children, and people convicted of crimes other than murder. The Court also has made every effort to ensure that mitigating factors are considered as broadly and aggravating factors as narrowly as possible.

Following the rulings in Gregg and the related cases, capital punishment resumed in 1977 in Utah. No nationwide moratorium similar to Furman has been placed on it since then.

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