Gregg v. Georgia

The justices were unable to agree on a single opinion, but Justices Stewart, Powell, and Stevens spoke for the seven-member majority. The Eighth Amendment prohibition against cruel and unusual punishment was not a static concept, they declared. Instead, it was subject to the public's evolving standards of decency. At the time the Constitution and Bill of Rights were drafted, capital punishment was a common practice. Although less common in the latter half of the twentieth century, the ultimate punishment was still endorsed by public opinion as expressed in the legislation of a majority of the states. Accordingly, the Court was obliged to defer to public acceptance of the appropriateness of the death penalty as punishment for certain crimes, provided that it was imposed under strict conditions designed to rule out cruelty and unfairness:

[O]ur cases . . . make clear that public perceptions are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying the Eighth Amendment." This means, at least, that the punishment not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain . . . Second, the punishment must not be grossly out of proportion to the severity of the crime.

Subsequent critics have pointed out the disparity between the Court's claim that the Eighth Amendment embodies a concept of fundamental human decency and its endorsement of a wide variety of considerations by state courts in death penalty cases. How, these critics ask, can a single standard for evaluating the appropriateness of the death penalty be squared with a proliferation of rules for its application? Seen from this perspective, Gregg gave states permission to continue to impose the death penalty without providing much guidance as to how this should be done. For some Court observers--as well as for Justices Brennan and Marshall--the Gregg decision had only succeeded in perpetuating the arbitrariness Furman condemned.