On
this date, July 2, 1976, Gregg v. Georgia reaffirmed the United States Supreme
Court's acceptance of the use of the death penalty in the United States,
upholding, in particular, the death sentence imposed on Troy Leon Gregg. I will post information
from Wikipedia.
INTERNET SOURCE: http://en.wikipedia.org/wiki/Gregg_v._Georgia
Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson
v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976),
reaffirmed the United States Supreme Court's acceptance of the use of the death
penalty in the United States, upholding, in particular, the death sentence
imposed on Troy Leon Gregg. Referred to by a leading scholar as the July
2 Cases and elsewhere referred to by the lead case Gregg,
the Supreme Court set forth the two main features that capital sentencing
procedures must employ in order to comport (i.e. comply) with the Eighth
Amendment ban on "cruel and unusual punishments." The decision
essentially ended the de facto moratorium on the death penalty imposed
by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238
(1972).
Argued March 30–31,
1976
Decided July 2, 1976 |
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Full case name
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Troy Leon Gregg v. State of Georgia;
Charles William Proffitt v. State of Florida; Jerry Lane Jurek v. State of
Texas; James Tyrone Woodson, et al. v. State of North Carolina; Roberts, et
al. v. Louisiana
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Citations
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428 U.S. 153 (more)
96 S. Ct. 2909; 49 L. Ed. 2d 859; 1976 U.S.
LEXIS 82
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Prior history
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Certiorari to the Supreme Courts of
Georgia, Florida, North Carolina, and Louisiana, and the Court of Criminal
Appeals of Texas
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Holding
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The imposition of
the death penalty does not, automatically, violate the Eighth and Fourteenth Amendment.
If the jury is furnished with standards to direct and limit the sentencing
discretion, and the jury's decision is subjected to meaningful appellate
review, the death sentence may be constitutional. If, however, the death
penalty is mandatory, such that there is no provision for mercy based on the
characteristics of the offender, then it is unconstitutional.
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Court membership
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Case opinions
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Majority
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Stewart, joined by Powell, Stevens
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Concurrence
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Rehnquist
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Concurrence
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White, joined by Burger, Rehnquist
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Concurrence
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Blackmun
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Dissent
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Brennan
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Dissent
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Marshall
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Laws applied
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Background
All
five cases share the same basic procedural history. After the Furman
decision, the states of Georgia, Florida, Texas, North Carolina, and Louisiana
amended their death penalty statutes to meet the Furman guidelines.
Subsequently, the five named defendants were convicted of murder and sentenced
to death in their respective states. The respective state supreme court upheld
the death sentence. The defendants then asked the U.S. Supreme Court to review
their death sentence, asking the Court to go beyond Furman and declare
once and for all the death penalty to be "cruel and unusual
punishment" and thus in violation of the Constitution; the Court agreed to
hear the cases.
In
the July 2 Cases, the Court's goal was to provide guidance to states in
the wake of Furman. In Furman only one basic idea could command a
majority vote of the Justices: capital punishment, as then practiced in the
United States, was cruel and unusual punishment because there were no rational
standards that determined when it was imposed and when it was not. The question
the Court resolved in these cases was not whether the death sentence imposed on
each of the individual defendants was cruel, but rather whether the process by
which those sentences were imposed was rational and objectively reviewable.
Capital
punishment and the Eighth Amendment
The
defendants in each of the five cases urged the Court to go farther than it had
in Furman by holding once and for all that capital punishment was cruel
and unusual punishment that violated the Eighth Amendment. However the Court
responded that "The most marked indication of society's endorsement of the
death penalty for murder is the legislative response to Furman."
Both Congress and 35 states had complied with the Court's dictates in Furman
by either specifying factors to be weighed and procedures to be followed when
imposing a death sentence, or dictating that the death penalty would be
mandatory for specific crimes. Furthermore, a referendum in California had
overturned the California Supreme Court's earlier decision (California v.
Anderson) holding that the death penalty violated the California
constitution. The fact that juries remained willing to impose the
death penalty also contributed to the Court's conclusion that American society
did not believe in 1976 that the death penalty was in all circumstances a cruel
and unusual punishment.
The
Court also found that the death penalty "comports with the basic concept
of human dignity at the core of the [Eighth] Amendment". The death penalty
serves two principal social purposes—retribution and deterrence. "In part,
capital punishment is an expression of society's moral outrage at particularly
offensive conduct". But this outrage must be expressed in an ordered
fashion, for America is a society of laws. Retribution is consistent with human
dignity, because society believes that "certain crimes are themselves so
grievous an affront to humanity that the only adequate response may be the
penalty of death". And although it is difficult to determine statistically
how much crime the death penalty actually deters, the Court found that in 1976
there was "no convincing empirical evidence" supporting either the
view that the death penalty is an effective deterrent to crime or the opposite
view. Still, the Court could not completely discount the possibility that for
certain "carefully contemplated murderers", "the possible
penalty of death may well enter into the cold calculus that precedes the decision
to act".
Finally,
the Court considered whether the death penalty is "disproportionate in
relation to the crime for which it is imposed". Although death is severe
and irrevocable, the Court could not say that death was always disproportionate
to the crime of deliberately taking human life. "It is an extreme
sanction, suitable to the most extreme of crimes".
Historical
disapproval of mandatory death sentences
The
Court was determined to simultaneously save capital punishment in the United
States and impose some reasoned basis for carrying it out. That reasoning flows
from the Eighth Amendment's cruel and unusual punishment clause. Although
capital punishment is not per se cruel and unusual, it must still be carried
out in a manner consistent with the evolving standards of decency that mark the
progress of a maturing society. In the Court's view, the country's history with
capital punishment suggests that those evolving standards of decency could not
tolerate a return to the mandatory death
penalty for murder that had prevailed in medieval England.
In
medieval England, the penalty for a vast number of serious crimes, including
murder, was death. This rule traveled with the colonists to America, and was
the law in all states at the time the Eighth Amendment was adopted in 1791. By
then, however, a problem with the common-law mandatory death penalty had crept
into the legal system. If the jury has only two options—convicting a defendant
of murder, where the penalty is death, or acquitting the defendant outright—it
has no vehicle to express the sentiment that the defendant should be punished somehow,
but not executed. Faced with this dilemma, some juries would acquit the
defendant in order to spare his life. Of course, this meant that an obviously
guilty person would go free.
To
mitigate the harshness of the common-law rule, Pennsylvania divided murder into
"degrees" in 1794. First-degree murder, a capital crime, was limited
to all "willful, deliberate, and premeditated" murders. All other
murder was second-degree murder, and not a capital crime. This development
eased the tension created by the common-law mandatory death penalty, but some
juries still refused to convict defendants who were clearly guilty of first-degree
murder because that crime carried a mandatory death penalty.
Recognizing
that juries in capital cases found discretion in sentencing desirable,
Tennessee, Alabama, and Louisiana afforded their juries this discretion in the
1840s. Finally, the jury could respond to mitigating factors about the crime or
the criminal and withhold the death penalty even for convicted first-degree
murderers. This development spread, and by 1900 23 states and the federal
government had discretionary sentencing in capital cases. Fourteen more states
followed in the first two decades of the 20th century, and by 1963 all
death-penalty jurisdictions employed discretionary sentencing.
Decision
of the Court
The Court set out two broad guidelines that
legislatures must follow in order to craft a constitutional capital sentencing
scheme:
- First, the scheme must provide objective criteria to direct and limit the death sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences.
- Second, the scheme must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant.
In Gregg, Proffitt, and Jurek,
the Court found that the capital sentencing schemes of Georgia, Florida, and
Texas, respectively, met these criteria; whereas in Woodson and Roberts,
the Court found that the sentencing schemes of North Carolina and Louisiana did
not.
Constitutional
sentencing procedures
The
proposition that the death penalty was not always cruel and unusual punishment
was just the beginning of the discussion. Furman had held 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." The question the Court confronted
in these five cases was whether the procedures crafted by Georgia, Florida,
Texas, North Carolina, and Louisiana adequately minimized that risk. In all
five cases, the Court's primary focus was on the jury.
Although
in most criminal cases the judge decides and imposes the sentence,"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." The
drafters of the Model Penal Code
concluded that the now-familiar bifurcated procedure, in which the jury first
considers the question of guilt without regard to punishment, and then
determines whether the punishment should be death or life imprisonment, is the
preferable model. This was the model that the Court approved in these
cases—although it tacitly approved a model without any jury involvement in the
sentencing process, an approval that persisted until 2002's Ring v. Arizona.
The
drawback of having juries rather than judges fix the penalty in capital cases
is the risk that they will have no frame of reference for imposing the death
penalty in a rational manner. Although this problem may not be totally
correctible, the Court trusted that the guidance given the jury by the
aggravating factors or other special-verdict questions would assist it in
deciding on a sentence. The drafters of the Model Penal Code "concluded
that it is within the realm of possibility to point to the main circumstances
of aggravation and mitigation that should be weighed and weighed against each
other when they are presented in a concrete case." For the Court, these
factors adequately guarded against the risk of arbitrary imposition of the
death sentence.
Every
death sentence involves first an eligibility determination and then a selection
of an eligible defendant for the death penalty. A defendant is eligible for the
death penalty once the jury has concluded that he is a member of that narrow
class of criminal defendants who have committed the most morally outrageous of
crimes. An eligible defendant is then selected for the death penalty after the
sentencer takes into account mitigating evidence about the character and record
of the defendant in order to decide whether that individual is worthy of a death
sentence.
In
addition to jury sentencing through the guidance of aggravating factors, a
constitutional capital sentencing scheme must provide for appellate review of
the death sentence, typically by the state's supreme court. This review must
not be a rubber stamp; there must be evidence in the state's decisional law
that the court takes seriously its responsibility to ensure that the sentence
imposed was not arbitrary. Currently, those states which still maintain a death
penalty option have a mandatory appeal of the sentence (defendants sentenced to
death cannot waive this appeal, but can waive appeals beyond this stage subject
to a compentency hearing).
With
Gregg and the companion cases, the Court approved three different
schemes that had sufficiently narrow eligibility criteria and at the same time
sufficiently broad discretion in selection. By contrast, the two schemes the
Court disapproved had overly broad eligibility criteria and then no discretion
in sentencing.
Capital
punishment schemes approved by the Court
Georgia
Under
the Georgia scheme (which generally followed the Model Penal Code), after the
defendant was convicted of, or pled guilty to, a capital crime (under the first
part of the bifurcated trial proceeding), the second part of the bifurcated
trial involved an additional hearing at which the jury received additional
evidence in aggravation and mitigation. In order for the defendant to be
eligible for the death penalty, the jury needed to find the existence of one
of ten aggravating factors:
- The defendant has previously been convicted of a capital felony or has a history of committing serious felonies.
- The capital felony was committed while the defendant was committing another capital felony.
- The defendant created a grave risk of death to others.
- The defendant committed the crime for the purpose of receiving money or anything else of value.
- The defendant killed a judge or prosecutor exercising his official duties.
- The defendant hired a killer.
- The crime was "outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."
- The defendant killed a police officer, prison guard, or fireman in the line of duty.
- The offense was committed by someone who had escaped from prison.
- The offense was committed for the purpose of avoiding arrest.
Once
the jury found that one or more of the aggravating factors existed beyond a
reasonable doubt, then the defendant would be eligible for the death penalty.
The jury may, but was not required to, then evaluate all the evidence it had
heard, including mitigating evidence and other aggravating evidence not
supporting one of the ten factors beyond a reasonable doubt—and decide whether
the defendant should live or die. This scheme is called a non-weighing
scheme, because the sentencer is not required to weigh the statutory
aggravating factors against mitigating evidence before imposing a death
sentence.
The
Court found that, because of the jury's finding at least one aggravating factor
was a prerequisite for imposing the death penalty, Georgia's scheme adequately
narrowed the class of defendants eligible for the death penalty. Although there
was admittedly some discretion as to the mitigation phase, that discretion is
channeled in an objective way, and therefore provided for individualized
sentencing. Thus, Georgia's death penalty scheme complied with the Furman
requirements and was thus approved by the Court
Florida
Florida's
scheme differed from Georgia's in two respects.
First,
at the sentencing hearing, the jury determined whether one or more aggravating
factors exist, drawing on a list very similar to Georgia's. Then the jury was
specifically asked to weigh the mitigating evidence presented against the
statutory aggravating factors that have been proved. This scheme is called a weighing
scheme.
Second,
the jury's role was only advisory; the judge could disregard the jury's
sentencing recommendation, but had to explain his reasoning if he did. Under
Florida law, if the jury recommended life but the judge imposed a death
sentence, "the facts suggesting a sentence of death should be so clear and
convincing that virtually no reasonable person could differ." The trial
judge must independently reweigh the aggravating factors against the mitigating
factors.
The
Court concluded that, as the sentencer's discretion was limited in an objective
fashion and directed in a reviewable manner, Florida's scheme also adequately
narrowed the class of defendants eligible for the death penalty. The Court
noted that Florida's scheme came closest to the Model Penal Code's
recommendation of an ideal sentencing scheme, as it used a weighing scheme
whereas Georgia's scheme did not, thus allowing for individual sentencing. Thus,
Florida's death penalty scheme also complied with the Furman
requirements and was thus also approved by the Court.
Texas'
scheme differed considerably from that suggested by the Model Penal Code and
followed in large part by Georgia and Florida.
In
order to narrow the class of death penalty-eligible defendants as required by Furman,
the Texas Legislature did not adopt the "aggravating factors"
approach outlined by the Model Penal Code, Instead, it chose to modify and
severely narrow the legal definition of "capital murder", thus
requiring certain objective elements to be present before one could be charged
with capital murder and thus eligible for the death penalty. The 1976 law
defined capital murder in Texas as involving one of the five situations:
- murder of a police officer or fireman;
- murder committed in the course of committing kidnapping, burglary, robbery, forcible rape, or arson;
- murder committed for remuneration (contract killing);
- murder committed while escaping or attempting to escape from a penal institution; and
- murder committed by a prison inmate when the victim is a prison employee.
If
the defendant was convicted of capital murder, and if the prosecution sought
the death penalty (which it has never been required to do in Texas), the second
part of the bifurcated trial required the jury to consider two (or sometimes
three) "special issues":
- whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
- whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (under Texas law, "society" was defined as both inside and outside of the prison system; thus, a defendant who would pose a threat to persons inside prison – such as other inmates or correctional officers – would be eligible for the death penalty); and
- if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
If
all applicable special issues were answered in the affirmative, then the result
would be an automatic death sentence; if any special issue was not answered in
the affirmative, the sentence would be life
imprisonment.
The
Court concluded that Texas' narrow legal definition of capital murder served
the same purpose as the aggravating factors in the Georgia and Florida schemes,
that being to adequately narrow the class of defendants eligible for the death
penalty. The Court even observed that "the principal difference between
Texas and the other two States [Georgia and Florida] is that the death penalty
is an available sentencing option - even potentially - for a smaller class of
murders in Texas" (an ironic observation given that, in the post-Gregg
era, Texas has executed more defendants than any other state).
However,
the special issues feature and its automatic death sentence imposition (if all
were answered in the affirmative) was the key issue in the Court's analysis. In
its review, the Texas Court of Criminal Appeals (which serves as the body for
automatic appeal of death sentences in Texas) indicated that the second special
issue (the "continuing threat to society" issue) would allow the
defendant to present mitigating evidence to the jury. The Court concluded that
the second special issue would allow for the same extensive consideration of
mitigating evidence as the Georgia and Florida schemes. Thus, Texas' death
penalty scheme, though considerably different from Florida's and Georgia's also
complied with the Furman requirements and was thus also approved by the
Court.
The
defendant in this case, Jerry Jurek (TDCJ #508), would ultimately see his
sentence commuted to life in prison. Texas would later amend its three
questions, keeping the "continuing threat to society" question,
adding a second question specifically dealing with mitigating evidence, and
adding a third question applicable only if the defendant was convicted as an
accessory.
Capital
punishment schemes rejected by the Court
North
Carolina
In
1974, the North Carolina General Assembly (similar to the approach taken by the
Texas Legislature) chose to adopt a narrow definition of "first-degree
murder" which would be eligible for the death penalty, which was defined
as:
murder perpetrated by means of poison, lying in wait, imprisonment,
starving, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which shall be committed in the perpetration or
attempt to perpetrate any arson, rape, robbery, kidnapping, burglary, or other
felony.
North
Carolina had also enacted a mandatory death penalty for first-degree rape, but
the Court later ruled in Coker v. Georgia that rape is not a capital crime, at
least where the victim is not killed.
The
North Carolina Supreme Court had ruled that its capital sentencing scheme could
survive Furman analysis if the legislature removed the discretionary
sentencing provision. However, it was the lack of discretion in sentencing that
the Court used to rule the scheme unconstitutional.
Louisiana
In
1973, the Louisiana Legislature adopted the approach taken by North Carolina,
by redefining first-degree murder as the killing of a human being in one of
five circumstances:
- when the offender has a specific intent to kill and is engaged in the perpetration of aggravated kidnapping, aggravated rape, or armed robbery;
- when the offender has a specific intent to kill a fireman or police officer engaged in the performance of his duties;
- when the offender has a specific intent to kill and has previously been convicted of an unrelated murder or is serving a life sentence;
- when the offender has a specific intent to kill or inflict great bodily harm on more than one person; and
- when the offender has a specific intent to kill and has been offered or has received anything of value for committing the murder
Also,
unlike North Carolina, Louisiana law required the jury in all first-degree
murder cases to be instructed on second-degree murder and manslaughter, crimes
ineligible for the death penalty.
Although
Louisiana had created a class of death-eligible crimes somewhat narrower than
North Carolina had, it still had a mandatory death penalty for a significant
range of crimes; the lack of discretion in sentencing caused the Louisiana
scheme to suffer the same unconstitutional infirmities as North Carolina's.
Other
views expressed in these cases
Justices Brennan
and Marshall expressed their
views, which they also articulated in Furman, that the death penalty
does not deter crime and that our society has evolved to the point that it is
no longer an appropriate vehicle for expressing retribution. In every
subsequent capital case that would come before the Court during their tenures,
they would refer to their opinions in Gregg in support of their vote
against the death penalty.
Justice White countered that capital punishment
cannot be unconstitutional because the Constitution expressly mentions it and
because two centuries of Court decisions assumed that it was constitutional.
Furthermore, for White the judgment of the legislatures of 35 states was
paramount, and suggested that the punishment should remain in use. He also felt
that the Court should defer to a state legislature's response to the problem of
juror response to the prospect of capital punishment, rather than dictate that
the Eighth Amendment requires a particular response.
White
also disagreed that the Constitution required a separate penalty hearing before
imposing the death penalty. "Even if the character of the accused must
be considered under the Eighth Amendment, surely a State is not
constitutionally forbidden to provide that the commission of certain crimes
conclusively establishes that the criminal's character is such that he deserves
death." He also saw no difference between Louisiana's definition of
first-degree murder and Texas's definition of capital murder.
Justice Rehnquist would have upheld North Carolina's
and Louisiana's mandatory death penalties. He disputed the historical evidence
adduced in support of the claim that American juries dislike mandatory death penalties.
He also felt that the Court's decisions had an analytical flaw. The Court had
struck down the mandatory death penalty because it took away discretion from
the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death
penalty for no reason at all. Thus, Georgia's scheme did not alleviate the
concerns articulated in Furman about the arbitrariness of the death
penalty any more than North Carolina's ignored them. He also disputed whether
the appellate review of death sentences inherent in the systems the Court had
approved could truly ensure that each death sentence satisfied those concerns.
He finally took issue with the idea that the fact that "death is
different" requires any extra safeguards in the sentencing process.
Justice John Paul Stevens remarked in October
2010 that his vote in the decision was regrettable. Stevens told the Washington Post that his vote was
made with respect for precedent within the court that held capital punishment
to be constitutional.
Impact
The
July 2 Cases mark the beginning of the United States's modern legal
conversation about the death penalty. Major subsequent developments include
forbidding the death penalty for rape (Coker v. Georgia), restricting the
death penalty in cases of felony murder (Enmund
v. Florida), exempting the mentally handicapped (Atkins v. Virginia)
and juvenile murderers (Roper v. Simmons) from the death
penalty, removing virtually all limitations on the presentation of mitigating evidence (Lockett v. Ohio, Holmes v. South
Carolina), requiring precision in the definition of aggravating
factors (Godfrey v. Georgia,
Walton v. Arizona),
and requiring the jury to decide whether aggravating factors have been proved
beyond a reasonable doubt (Ring v. Arizona).
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