Facts—Troy Gregg was convicted in a Georgia trial court of robbery and murder. The trial was in two stages, a guilt stage and a sentencing stage. Fred Simons and Bob Moore gave two hitchhikers (Troy Gregg and Floyd Allen) a lift in their car. A short while later they offered a third hitchhiker, Dennis Weaver, a ride. He left the car in Atlanta. Subsequently, the remaining four stopped for a rest, and Allen testified that Gregg ambushed and killed the original occupants, Simons and Moore, at that point. Gregg claimed the killings were in self-defense.

Question—Do the Georgia death penalty statutes violate the cruel and unusual punishment provisions under the Eighth and Fourteenth Amendments?

Decision—No.

Reasons—J. Stewart (7–2). “The punishment of death for the crime of murder does not,” said the Court, “under all circumstances, violate the Eighth and Fourteenth Amendments.” Although the legislature may not impose excessive punishment, it is not required to select the least severe penalty possible. Capital punishment is not invalid per se and was accepted by the Framers of the Constitution. “Legislative measures adopted by the people’s chosen repre- sentatives weigh heavily in ascertaining contemporary standards of decency,” and in this connection the Court noted that, since Furman v. Georgia (1972) was struck down, thirty-five states have enacted new statutes providing for the death penalty. Moreover “retribution” and “deterrence” are not “impermissible considerations for a legislature to weigh in determining whether the death penalty should be imposed.” The bifurcated proceedings in Georgia have met the concerns of arbitrariness and capriciousness condemned in Furman.

J. Brennan and J. Marshall wrote dissents emphasizing that the concept of cruel and unusual punishment needs to evolve with societal understandings. Acknowledging that many states had reenacted capital punishment since Furman v. Georgia, Marshall argued that those most knowledgeable about the penalty continued to oppose it.

Note—The Court has outlawed jury sentences “wantonly and . . . freakishly imposed” in Furman v. Georgia (1972), as well as mandatory death sentences in Woodson v. North Carolina (1977), but not, as in Gregg, a two-part proceedings: one for determining guilt and the other for determining the sentence.