The Burger Court (1969–86)

Criminal Law and Procedure

When did the Supreme Court rule the death penalty constitutional again?

The Furman decision caused many states to pass new death penalty statutes that would provide more guidance to jurors on whether a defendant should be sentenced to death. Georgia’s new statute required jurors to focus on aggravating and mitigating factors associated with the capital crime. In 1976, the U.S. Supreme Court ruled 7–2 that this Georgia law was constitutional in Gregg v. Georgia. Because it focused on these aggravating and mitigating factors, Justice Potter Stewart wrote: “No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines.” Stewart wrote that the new statute focused the jury on “the particularized nature of the crime and the particularized characteristics of the individual defendant.” Since Gregg, the U.S. Supreme Court has never ruled that the death penalty is per se unconstitutional.

Only Justices William Brennan and Thurgood Marshall dissented in Gregg. Brennan wrote: “Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment…. The fatal constitutional infirmity in the punishment of death is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded.” Marshall agreed in his dissent: “The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments.”

In 1977, Gary Gilmore became the first person to be executed since the U.S. Supreme Court had ruled in 1972 in Furman v. Georgia that Georgia’s death penalty had violated the Eighth Amendment. Hulton Archive/Getty Images.

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