Gregg v. Georgia

In 1972, in Furman v. Georgia, the Supreme Court had declared that the death penalty was unconstitutional. Over the next few years, a change in justices, as well as the imposition of certain procedures to prevent arbitrariness and prejudice in state trials of capital crimes, resulted in a changed attitude towards capital punishment.

Troy Gregg was charged with two counts each of armed robbery and murder. At his trial, evidence was presented that Gregg, together with a traveling companion, Floyd Allen, had been hitchhiking north in Florida when, on 21 November 1973, they had been picked up by Fred Simmons and Bob Moore. After their car broke down, Simmons purchased another with cash that he was carrying, and the four traveled on together into Georgia, where they stopped at a highway rest stop. The next morning, Simmons's and Moore's bodies were found in a nearby ditch. Allen and Gregg, who were riding in Simmons's car, were picked up the next afternoon by police. Claiming self-defense, Gregg signed a confession admitting he had shot, then robbed, Simmons and Moore. Allen, however, told police that Gregg had first threatened to rob the two victims after they left the car. When they started to climb up an embankment towards the car, Allen said, Gregg climbed up on the automobile in order to improve his aim. After felling the two men, Gregg shot each in the head, execution style, and robbed them of their valuables.

Owing to a U.S. Supreme Court ruling, Furman v. Georgia (1972), that had been handed down just the year before, the state of Georgia had implemented new procedures for trying criminal defendants charged with crimes punishable by death. Before Furman, in which the Court for the first time struck down the death penalty as unconstitutional, the decision of whether or not to impose capital punishment had been more or less left to the unlimited discretion of juries. The result was often arbitrary, with African-American, poor, or socially disadvantaged defendants being sentenced to death in disproportionate numbers. After Furman, all 36 states that authorized the death penalty halted executions while procedural safeguards were put in place.

In Georgia, the legislature adopted the following provisions: 1) in trials for capital offenses, guilt or innocence is determined in the first part of a two-part trial, during which the judge is required to instruct the jury about the possibility of finding guilt for other, lesser offenses, 2) after a verdict is handed down, another hearing is conducted as to the possible presence of mitigating or aggravating circumstances that could affect the sentence imposed, 3) at least one of 10 aggravating circumstances (such as the defendant having a prior criminal record) must exist before the death penalty could be imposed, 4) after the death sentence is imposed, it is automatically appealed in order to determine whether it was fairly imposed and is proportional to the crime, and 5) if the death penalty is upheld by the Georgia Supreme Court, that court must include in its decision references to other, similar cases the court has considered.

The trial judge in Gregg followed these procedures. He advised the jury that it could impose either life-in-prison or the death penalty for each of the crimes charged and that it could consider both aggravating and mitigating circumstances. He instructed the jury that the death sentence would apply only if it found beyond a reasonable doubt that the murders were committed under any of three possible scenarios that could be considered aggravating: 1) that they were committed in the course of committing other capital crimes, 2) that they were committed to facilitate robbery, or 3) that they were outrageously inhumane. The jury found that the first two aggravating circumstances applied and sentenced Gregg to death. The Georgia Supreme Court, following the new statutory guidelines, upheld the sentence, finding that it was neither excessive nor arbitrary. It did, however, reverse the sentences for robbery, finding that the death penalty was rarely imposed for this crime. Gregg then appealed to the U.S. Supreme Court.

In Furman, the Court had declined to declare the death penalty a per se violation of the Eighth Amendment ban on cruel and unusual punishment. The reason given in this case for outlawing capital punishment was that it was improperly administered. With the adoption and application of court rules such as those under consideration in Gregg, this objection seemed to have been answered. The Court upheld the decision of the Georgia Supreme Court. Justices Brennan and Marshall were the two dissenting votes; in Gregg, as in every death penalty case that came before the Court during their tenures, the dissenting justices found capital punishment a per se violation of the Eighth Amendment.