# Gregg v. Georgia

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Gregg v. Georgia, 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.

## Concurring Opinions

    White
    Burger
    Blackmun

## Dissenting Opinions

    Brennan
    Marshall
Supreme Court of the United States
428 U.S. 153
Gregg v. Georgia
Certiorari to the Supreme Court of Georgia
No. 74-6257 Argued: March 31, 1976 --- Decided: July 2, 1976
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 [p. 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. 168-207; 220-226; 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. 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. 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. 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. 176-178.
[p. 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. 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. 183-187.
(f) Capital punishment for the crime of murder cannot be viewed as invariably disproportionate to the severity of that crime. P. 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. 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. 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 [p. 156] fact that the Governor or pardoning authority may commute a death sentence—do not render the Georgia statute unconstitutional. P. 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. 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. 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. 220-224.
[p. 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. 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 350-356. P. 226.
Mr. Justice Blackmun concurred in the judgment. See Furman v. Georgia, 408 U.S., at 405-414 (Blackmun, J., dissenting), and id., at 375 (Burger, C.J., dissenting); id., at 414 (Powell, J., dissenting); id., at 465 (Rehnquist, J., dissenting). P. 227.
Judgment of the Court, and opinion of Stewart, Powell, and Stevens, JJ., announced by Stewart, J. White, J., filed an opinion concurring in the judgment, in which Burger, C.J., and Rehnquist, J., joined, post, p. 207. Burger, C.J., and Rehnquist, J., filed a statement concurring in the judgment, post, p. 226. Blackmun, J., filed a statement concurring in the judgment, post, p. 227. Brennan, J., post, p. 227, and Marshall, J., post, p. 231, filed dissenting opinions.
G. Hughel Harrison, by appointment of the Court, 424 U.S. 941 , argued the cause and filed a brief for petitioner.
G. Thomas Davis, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, John B. Ballard, Jr., Assistant Attorney General, and Bryant Huff.
[p. 158] Solicitor General Bork argued the cause for the United States as amicus curiae. With him on the brief was Deputy Solicitor General Randolph. William E. James, Assistant Attorney General, argued the cause for the State of California as amicus curiae. With him on the brief were Evelle J. Younger, Attorney General, and Jack R. Winkler, Chief Assistant Attorney General.

#### Notes

* ↑ Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam filed a brief for the N.A.A.C.P. Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal. Arthur M. Michaelson filed a brief for Amnesty International as amicus curiae.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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