GREGG V. GEORGIA
Modern U.S. death penalty JURISPRUDENCE begins with the U.S. Supreme Court’s decision in Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976). In that landmark case, the Court rejected the idea that CAPITAL PUNISHMENT is inherently CRUEL AND UNUSUAL PUNISHMENT under the EIGHTH AMENDMENT.
In addition, it endorsed new state death penalty
statutes that sought to address the criticisms that
the Court had raised in FURMAN V. GEORGIA,
408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed.2d 346
(1972). These statutes split the criminal trial
into a guilt phase and a penalty phase, gave
jurors specific aggravating and mitigating fac-
tors to consider in deliberating the death
penalty, and mandated appellate review with
designated factors for the court to consider.
Finally, the states removed capital punishment
as a sentencing option for crimes other than
murder. Since Gregg, the issues surrounding the
death penalty have turned on procedural fair-
ness rather than questions of societal values.
By the early 1970s, the death penalty had
been removed from the statute books in many
countries, including Austria, Denmark, Great
Britain, Portugal, Switzerland, Brazil, and
Venezuela. In the United States, criticism of the
ARBITRARY administration of capital punish-
ment and its application to crimes other than
murder led to judicial challenges based on the
Eighth Amendment’s Cruel and Unusual Pun-
ishment proscription. The number of execu-
tions had dwindled, and public opinion polls
suggested that the death penalty was no longer
as popular. Therefore, opponents were opti-
mistic when the U.S. Supreme Court struck
down three death sentences in Furman.How-
ever, the Court’s manner of deciding the case
revealed a split in the way that the justices
looked at the death penalty. Furman, which
came on a 5–4 vote, was issued as a per curiam
decision, which takes the form of a brief,
unsigned opinion. Such a decision does not have
as great a precedential value as a signed opinion,
as it indicates that the court was deeply divided
over the reasons that went into its ultimate deci-
sion either to affirm or reverse a decision. Each
justice filed a separate opinion, with only Jus-
tices WILLIAM BRENNAN and THURGOOD MAR-
SHALL declaring that the death penalty is
intrinsically cruel and unusual punishment.
Others on the Court who reversed the sentences
indicated that capital punishment might be con-
stitutional if the states administered it fairly and
rationally so as to serve legitimate societal needs.
Georgia set out to address these concerns,
and its legislature passed a comprehensive death-
penalty-reform law. It established a bifurcated
trial process, in which guilt or innocence is to be
decided first. If the defendant were found guilty
of a capital crime, the jury then entered a penalty
phase. The state developed a list of 14 “aggravat-
ing circumstances,” any one of which could jus-
