In Furman v Georgia (1972), the Supreme Court found that sweeping jury discretion in death penalty cases was unconstitutional. Many predicted that this decision was the end of capital punishment in the United States. However, there was state backlash to the Furman decision, leading to many new laws surrounding capital punishment, such as guided discretion sentencing in Georgia. In this setup, once one was convicted of a death-eligible offense, the court could start a new stage of the trial known as the “penalty stage.” If the jury found that the crime had particularly “aggravating circumstance[s],” it could decide to use the death penalty. However, the jury could still decide against the death penalty if it found “mitigating evidence” that could warrant leniency. 

Meanwhile, two men, Fred Simmons and Bob Moore, decided to pick up two hitchhikers, Troy Gregg and Floyd Allen. Gregg and Allen robbed and murdered the two men who picked them up. Gregg claimed self-defense but was still found guilty of robbery and murder. During the penalty hearing, the jury found aggravating factors: Gregg was also conducting a robbery at the time and killed the men for monetary gain. Therefore, Gregg was sentenced to death. Gregg claimed the death penalty was “cruel and unusual punishment,” which violates the Eighth Amendment. Gregg also contended that the decision violated the Fourteenth Amendment, which requires states to use the due process of law and also states that the first ten amendments, including the eighth, apply to the states. 


In a 7-2 decision, the Supreme Court found that the death penalty was not always unconstitutional under the Eighth and Fourteenth Amendments, sustaining Gregg’s death sentence. The Court decided that the death penalty may be used only if it is used carefully. By using a bifurcated process where trial and sentencing were separate, the state of Georgia was being careful. Justice Potter Stewart wrote the plurality opinion for the Court, rejecting that the death penalty itself is a “cruel and unusual punishment”. The Court found that it may not regulate what penalties are used as long as the punishments are not inhumane or disproportionate. 

Justice Stewart cited the longstanding history of the death penalty in both the US and England. He also noted the harsh legislative backlash to the Court’s decision in Furman. Stewart saw the death penalty as serving a purpose by retributing and deterring capital crimes. Also, the new Georgia procedure was not a one-size-fits-all approach and had the jury focus on the individual characteristics of the defendant. 

Justice Byron White wrote a concurrence. He found the defendant’s argument that the death penalty is always unacceptable inconsistent with constitutional law. In addition, he wrote that the Court may not interfere with Georgia laws just because they doubt Georgia’s ability to implement the policies fairly. White argued for the Court to extend good faith to the Georgia legislature. 


Two justices wrote dissents to the Court’s decision. Justice William Brennan wrote that the death penalty is a backward practice that treats people as “nonhumans.” Brennan stated that “even the vilest criminal remains a human being possessed of common human dignity.” He declared that capital punishment is cruel and unusual. In addition, Justice Marshall dissented by writing that if the American people were more informed, they would know that the death penalty is “shocking, unjust, and unacceptable.” Marshall also criticized Justice Stewart’s claim that the death penalty serves as a deterrence or legitimate retribution, stating that it is excessive and should be forbidden in the United States. 


Following the Gregg v. Georgia decision, the guided discretion approach has continued to be used by states and upheld in courts. Since the reinstatement of the death penalty in 1976, 1,512 people have been executed by the government. As of early 2020, capital punishment is still legal in 29 states. In 2019, the United States executed 22 people. 

Think Further

  1. Do you agree with the Court that a bifurcated trial is better at preventing needless death sentences than a mandatory death sentence? 
  2. What type of practices do you think fall under “cruel and unusual punishment”? 
  3. Do you agree that the death penalty can serve two purposes: deterrence and retribution?


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Learn More

  1. Gillman, Howard. American Constitutionalism, Second Edition. Volume II Rights and Liberties. [Virtual Source Bookshelf].
  2. “Gregg v. Georgia.” Oyez,
  3. Coenen, Dan T. “Gregg v. Georgia (1976).” New Georgia Encyclopedia. 17 May 2016. Web.
  4. CNN Editorial Research, “Death Penalty Fast Facts.” CNN US. 7 January 2020.