Gregg v. Georgia (1976)
Photo courtesy Vangaurd News Group
Introduction
Supreme Court jurisprudence around the Eighth Amendment's cruel and unusual punishment has been characterized by a level of change and volatility that is rare in constitutional practice. The Court’s suspension of the death penalty nationwide in Furman v. Georgia (1972) lasted only four years, until the seminal ruling in Gregg v. Georgia reinstated it. And while Gregg’s core finding that the death penalty is not inherently cruel and unusual survives to the present, tying the constitutionality of capital punishment to “evolving standards of decency” has led to four decades of intense debate, not only around the contested practice of capital punishment, but around the methods and objectivity of the Court ruling on it.
The Long History of the Death Penalty in America
Capital punishment in America dates back to its earliest days. European settlers imported the practice with them, and it has been a basic element of the American criminal justice system since. Captain George Kendall, who was found to have spied on Spain’s behalf, was the first recorded execution in American, in 1608. Massachusetts Bay Colony held its first execution in 1630. Death penalty laws across the colonies varied widely, and in some places applied to such minor offenses as theft, striking one’s parent, trading with Indians, or heresy. Moral debates over the propriety of capital punishment likewise quickly arose. Thomas Jefferson introduced an extensive reform bill in Virginia in 1779 that would have limited capital punishment to cases of murder and treason (it failed by a single vote). Constitutional framer Benjamin Rush of Pennsylvania was an early voice for abolition, and was instrumental in Pennsylvania’s being the first state to limit capital punishment in 1794 to crimes of murder.
The early 1800s brought extensive legislation across the new republic that refined and limited capital punishment to more serious offenses. In 1846, Michigan became the first state to abolish the death penalty for all crimes except for treason. Rhode Island and Wisconsin would soon follow, totally abolishing the death penalty. But while a handful of states struck capital punishment from their criminal codes, most retained it, and the moral and legal debates remained at a simmer for much of the 1800s. The Civil War led to a decline in the opposition to capital punishment, as the anti-slavery movement took much of the reformers’ zeal. During the first two decades of the twentieth century half a dozen states abandoned the death penalty, only to reinstate it in relatively short order. The era of the Great Depression and Prohibition led to a surge in capital punishment, with the decade of the 1930s recording the most executions in the country’s history. That was followed by a mid-century reversal in public sentiment toward the death penalty. Executions in the country dropped dramatically, declining from 1,289 executions in the 1940s to 715 in the 1950s, and even lower in the 1960s. (Only 191 executions were recorded nationally from 1960 to 1976, the year Gregg was issued). By the mid-1960s, support for capital punishment was at an all-time low, with public support at 42%.
It was unsurprising then that the 1960s would bring challenges to the legality of the death penalty. For 170 years, the Constitution had been understood to allow the death penalty. For the first time, activists argued that the death penalty was a “cruel and unusual” punishment that ran afoul of the Eighth Amendment. The Supreme Court gave a boost to those efforts with its 1958 decision in Trop v. Dulles. While Trop was not a death penalty case, it provided the standard that reformers would employ to attack the death penalty. Overturning the military’s decision to strip a soldier of his citizenship for his deserting the army in time of war, Chief Justice Earl Warren articulated a rule by which the Eighth Amendment drew its meaning from “the evolving standards of decency that mark the progress of a maturing society." In light of the dwindling public support for the death penalty, its opponents had good reason to believe that the country had in fact progressed to a point that “standards of decency” would no longer tolerate the death penalty.
The Court, Furman v. Georgia, and the Death Penalty Pause
Following several 1968 Supreme Court cases that tinkered at the margins of the administration of the death penalty, the Court was ready to hear a direct challenge to the constitutionality of the practice. The NAACP Legal and Educational Fund (LDF), a major actor in civil rights litigation, brought a lawsuit disputing the constitutionality of the Georgia death penalty law; the Court accepted the case, leading to its 1972 decision in Furman v. Georgia. Under Georgia law, the jury was given sole responsibility for deciding on the death penalty, without further statutory guidance. The LDF blamed that open grant of authority for major disparities that existed in death penalty sentencing across racial lines. A badly divided Court agreed in a 7-2 decision, issuing a per curiam opinion that concluded that “the imposition and carrying out of the death penalty in [this and several companion cases] constitutes cruel and unusual punishment.” Beyond that, the Court agreed on little. The fractured result yielded nine separate opinions, totaling some 243 pages, one of the lengthiest in the Court’s history. Only two justices (Marshall and Brennan) considered the death penalty to be unconstitutional in all circumstances. Brennan thought it so severe as to “degrade human dignity” such that it could never be “acceptable to contemporary society.” Three more justices ruled that capital punishment was unconstitutional as the Georgia law applied to Furman. But their reasoning differed. Justice Douglas stressed the arbitrary application of the law due to unbounded jury discretion, while Potter Stewart bemoaned the statute’s “capricious application.” In contrast, Justice White concluded that the rarity of the penalty rendered its justifications of deterrence and retribution a nullity. Meanwhile the four dissenters largely agreed that the Court was unnecessarily encroaching on the legislatures’ prerogatives, especially in finding that contemporary standards had turned against capital punishment. In the end, Furman stood for a single point, that capital punishment, as practiced in the U.S, was cruel and unusual due to the lack of rational standards for determining when it should or should not be imposed.
But while foes of the death penalty heralded the ruling, state legislatures took note of an aside in Chief Justice Burger’s dissent. He stressed that capital punishment was not unconstitutional per se, and that “[L]egislative bodies may seek to bring their laws into compliance with the Court’s ruling by providing standards for juries and judges to follow . . .” The states wasted no time acting on Burger’s cue; virtually every state that had the death penalty prior to Furman set about doing precisely what Burger had signaled, passing new death penalty laws to meet the demands of Furman. Georgia was one of those states, rewriting its law in two significant ways. First it created a bifurcated trial process, separating out the guilt and penalty phases of the case. Second, the statute provided guidelines for the jury in the form of a set of ten aggravating factors. Before it could impose the death penalty, the jury had to specify in writing one of the aggravating circumstances that provided the basis for a death sentence. Thus did the statute aim to minimize jury discretion and eliminate the arbitrary application of the death penalty that proved fatal in Furman.
Within three years, the reworked Georgie death penalty statute was back before the Court, along with four other states which had similarly rewritten their death penalty statutes to satisfy Furman. All five cases involved defendants who had been convicted of murder and sentenced to death in their respective states. In each instance the state supreme courts had upheld the death sentence, from which the defendants appealed to the U.S. Supreme Court. But this time the defendants asked the Court to go beyond Furman and to rule definitively that the death penalty was "cruel and unusual punishment" that violated the Constitution. On July 2, 1976, the Court issued its decision in Gregg v. Georgia, upholding Gregg’s conviction by a 7-2 vote.
Justice Stewart’s Majority Opinion
Writing for the seven-member majority, Justice Potter Stewart began by generally acknowledging “a basic concept of human dignity” embedded in the Eighth Amendment. But he rejected the argument that the death penalty was per se cruel and unusual. First, textual support for capital punishment was implied in the language of the Fifth and Fourteenth Amendments. If “life, liberty and property” could not be taken without due process of law, by implication life could be taken after sufficient due process. Stewart pointed to the historical record as support for the constitutionality of capital punishment, noting that it was a common sanction in every state when the Eighth Amendment was enacted.
Steward then turned to the justifications offered for capital punishment, those of retribution and deterrence. Because they served legitimate social purposes, the Court found them to “comport with the basic concept of human dignity at the core of the [Eighth] Amendment". Steward argued that retribution was a valid expression of “society’s moral outrage.” Rather than an insult to human dignity, retribution advanced it, since society deemed "certain crimes . . . so grievous an affront to humanity that the only adequate response may be the penalty of death". Provided the sentence of death satisfied the requirement of proportionality and avoided the wanton infliction of pain and suffering, it accorded with human dignity.
In applying Warren’s standard of “evolving standards of decency that mark the progress of a maturing society,” the Court deemed legislatures as better equipped to judge contemporary standards than the judiciary. Hence their choices were entitled to a “heavy presumption of validity.” Stewart examined “objective indicia” that confirmed widespread public acceptance of capital punishment. The “most marked indication of society’s endorsement of the death penalty for murder” was the legislative response” to Furman. That thirty-five states had passed new laws in Furman’s wake indicated that “a large proportion of American society” regarded capital punishment as an appropriate and necessary sanction. Juries were another “significant and reliable index of contemporary values” in the community. That numerous death sentences had been issued by juries since Furman reinforced public sentiments in favor of it.
Finally Stewart analyzed the Georgia state legislature’s efforts to remedy the flaws identified in Furman. The Court in Furman had emphasized that jury discretion “on a matter so grave as the determination of whether a human life should be taken or spared” had to be “suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” The Furman Court had set out two basic guidelines that legislatures had to follow in crafting a constitutional capital sentencing scheme. First, the law had to provide objective criteria to direct and limit the death sentencing discretion. Second, it had to allow the sentencer to consider the character and record of an individual defendant. The Georgia law satisfied both general guidelines. The bifurcated trial ensured that there would be full exploration of the factors that might support sentencing, while insulating sentencing from findings of guilt that might stir undue emotion and prejudice. Second, the requirement that the jury explicitly cite one or more of the aggravating circumstances set out in the statute adequately guarded against the risk of arbitrary imposition of the death sentence.
The Dissents of Justices Marshall and Brennan
Justices Brennan and Marshall filed dissenting opinions, in which they echoed their stances in Furman. Marshall took aim at the justifications of deterrence and retribution, finding no evidence to support the former and characterizing the latter as “wholly inadequate to justify the death penalty.” Brennan concluded that American society had evolved to the point that it was no longer an appropriate vehicle for expressing retribution. Perhaps channeling his Catholic faith, Brennan opined that capital punishment “treat[ed] members of the human race as nonhumans, as objects to be toyed with and discarded.” Consigning someone to the fate of death could not be reconciled with the “principle of civilized treatment guaranteed” by the Eighth Amendment. As such the death penalty was fundamentally incompatible with the dignity of humanity.
The Legacy of Gregg v. Georgia
The immediate effect of Gregg was to bring to an end the four-year national moratorium on capital punishment imposed by Furman. It reinstated capital punishment in Georgia and other states that satisfied the dictates of Gregg. Gregg hardly laid to rest disagreements over the death penalty, however, instead stoking further debate and ongoing efforts to stem the practice of capital punishment. As a result, Eighth Amendment death penalty jurisprudence has hardly followed a straight or predictable line. On the contrary, the Trop rule that tied cruel and unusual punishment to “evolving standards of decency” meant that Supreme Court jurisprudence tended to track public sentiment on capital punishment. As public approval reached its zenith of 80% in the mid-1990s, the Court’s cases broadly tended to uphold the state’s use of capital punishment. But the past three decades have seen the cooling of public attitudes toward capital punishment, with approval gradually declining to around 50%. Consequently, the Court’s work in this realm has been marked by a degree of change and reversal uncommon in constitutional practice.
This phenomenon was illustrated in the Court’s cases involving criminal defendants who were either minors or intellectually challenged. In a pair of 1989 cases (Penry v. Lynaugh; Stanford v. Kentucky) the Court rejected categorical challenges to the death penalty for minors or those with a low IQ. But in a pair of seminal decisions in 2002 (Atkins v. Virginia) and 2005 (Roper v. Simmons), the Court explicitly overruled the 1989 cases. The results in Atkins and Roper were hotly contested, provoking animated exchanges over questions of deterrence, culpability, and moral blameworthiness in the context of underage or intellectually compromised defendants. The decisions also revealed widely divergent means of how to discern a “national consensus” around the specific application of the death penalty. Finally, the Atkins majority’s admission that “our own judgment will be brought to bear on the question” of cruel and unusual punishment only confirmed the dissenters’ view that the Trop test was mere cover for judges to cast votes dependent based on personal policy preferences.
“Evolving Standards of Decency”: Dead Rule Walking?
The “evolving standards of decency” test for capital punishment questions certainly attracted its fair share of critics, the sharpest among them the late Justice Antonin Scalia. In countless public appearances and speeches, Scalia made clear his special loathing for the standard, calling it “pollyannish” and an anchorless tool for “roving commission . . . [of] judges to enshrine” their own policy preferences. Justice Kennedy’s poetic waxings in Atkins about “dignity reflect[ing] the Nation we have been, the Nation we are, and the Nation we aspire to be” which “may acquire meaning as public opinion becomes enlightened by a humane justice” was sure to reduce Scalia to apoplexy. Were he alive, Scalia would be cheered by the current status of the test.
While the Trop rule has not been explicitly overruled, it almost certainly is a dead letter practically. The last positive reference to “evolving standards of decency” in a Supreme Court opinion was in Moore v. Texas (2017), when the Court by a 5-3 vote overturned a Texas criminal court ruling as an Eighth Amendment violation. Justice Ginsburg’s majority opinion was joined by, among others, Justices Kennedy and Breyer. None of those three justices remain on the Court, having given way to originalist Justices Kavanaugh, Barrett, and Gorsuch.
The writing on the wall (or at least on the pages of the Court’s opinions) marking the demise of the “evolving standards of decency” test was evident in the recent case of City of Grants Pass, Oregon v. Johnson (2024). Grants Pass considered whether enforcement of a local ban on camping in public spaces violated the Eighth Amendment. In a 6-3 decision along ideological lines upholding the local laws, the opinion was notable for its complete omission of Trop or the “evolving standards of decency” rule. Instead, Justice Gorsuch’s rejection of the Eighth Amendment challenge relied on history, tradition, Blackstone, and a mid-19th century case in divining the original meaning of cruel and unusual punishments. As is his wont, Justice Thomas’s concurrence urged the express overruling of Trop. He derided the notion of the Court acting as “sole arbiter of our Nation’s moral standards,” contending that Eighth Amendment cases were to be decided by the “fixed meaning” of the Cruel and Unusual Punishments Clause. Whether the Court follows Thomas’s path or Gorsuch’s, it seems unfathomable that the standard that dictated the result in Furman and Gregg will command a majority on the Court in the foreseeable future.
