Gregg v. Georgia

What arguments do the justices make for upholding the constitutionality of the death penalty in Gregg? In what ways does the concurrence of Justice White differ from the opinion of Justice Stewart? On what grounds did Justices Brennan and Marshall dissent from the court’s opinion?
Some critics of the court claim that it substitutes it’s views of what is morally or politically correct for those of the American people. Do you see evidence of this in Gregg, Roe, Heller, or Bakke? Would it be wrong for the Court to do this? If so, why?
Introduction

The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” How should a court interpret “excessive” or “cruel and unusual”? In the early twentieth century, the Supreme Court held that fines are excessive if they are so disproportionate to the offense as to constitute a violation of “due process of law.” In the same era, the Court declared in Weems v. US (1910) that the meaning of “cruel and unusual punishments” “is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” The Court thus laid the foundation for an evolving interpretation of the Eighth Amendment.

After holding in the 1960s that the prohibition on cruel and unusual punishments applies to the states through the Fourteenth Amendment, the Court applied the Weems principle in Furman v. Georgia (1972) to strike down the death penalty as it was being used by the states. In Furman, the Court held that the existing system of capital punishment used by the states was “cruel and unusual punishment” because sentencers were often given unguided discretion to impose or not to impose the death penalty for murder and because the penalty was being imposed discriminatorily, “wantonly and freakishly,” and so infrequently. The Court was split, however, over the death penalty itself: Four Justices would have held that capital punishment is not unconstitutional per se; two Justices would have reached the opposite conclusion; 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. Congress and many states responded to Furman by changing their procedures for sentencing and implementing the death penalty, which they then began to reimpose as a punishment.

The first test of whether the reformed death penalty was itself a “cruel and unusual” punishment came in 1976 in Gregg v. Georgia (one of several decided together by the Court). Troy Gregg was convicted by a jury 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. Gregg appealed to the US Supreme Court, arguing that imposition of the death sentence was cruel and unusual punishment under the Eighth and Fourteenth Amendments. By a 7-2 vote, the Court upheld Georgia’s imposition of the death penalty in this case. There was no majority opinion, however, with Justice Stewart writing for a plurality of three justices.

Because of split opinions, it was not clear what precedent was set by Gregg beyond accepting the constitutionality of the death penalty for murder under the procedures set by Georgia’s law. The Court, for example, did not fully say for what (or on whom) capital punishment could be imposed. Over the next thirty years, the federal courts continued to accept the constitutionality of the death penalty itself but applied the Weems principle of an evolving interpretation of “cruel and unusual” to narrow the circumstances in which capital punishment could be imposed. For example, the Supreme Court ruled that the death penalty is cruel and unusual when imposed for rape (Coker v. Georgia [1977]), including the rape of a child (Kennedy v. Louisiana [2008]); on the mentally disabled (Atkins v. Virginia [2002]); or on someone who was under 18 years of age when he or she committed a crime (Roper v. Simmons [2005]).

Suggestion for making this sentence clearer:

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, and that it was free to consider mitigating or aggravating circumstances, if any, as presented by the parties. The jury would not be authorized to consider imposing the death sentence unless it first found beyond a reasonable doubt at least one of these aggravating circumstances: 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.”

—Jeffrey Sikkenga

Source: 428 U.S. 153; https://www.law.cornell.edu/supremecourt/text/428/153#writing-ZS


Justice STEWART announced the judgment of the Court, joined by Justices POWELL and STEVENS.

. . . 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. . . .

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. But until Furman v. Georgia (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 unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. . . . We now hold that the punishment of death does not invariably violate the Constitution.

The history of the prohibition of “cruel and unusual” punishment already has been reviewed at length. The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. 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. 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.

In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determ