26

Gregg made clear that 1) while the death penalty was per se constitutional, 2) the Court would continue to oversee death penalty statutes and procedures with greater diligence and strictness than in non-capital cases. Stewart’s opinion in Gregg (as well as decisions made alongside and soon after Gregg) suggested three rules states must follow in order for their death penalty statutes to pass constitutional muster:

1. States must provide adequate guidance to jurors in applying the death penalty.

As the Gregg opinion illustrates, the main reforms required here were a) bifurcated trials for death penalty cases and b) requiring the codification of aggravating factors, which the jury must find present in the case they’re trying.

A bifurcated trial is one where deciding guilt and deciding the sentence are split into two separate phases. Doing so, the theory goes, helps the jury specifically focus on the death penalty determination, as well as allowing both the prosecution and the defense to introduce additional evidence (including evidence that would be inadmissible during the guilt and innocence phase ) regarding the suitability of the death penalty for the defendant and the crime committed.

Aggravating factors are elements of a homicide that make it particularly heinous or blameworthy. Simply put, in contemporary criminal law, most homicides do not merit the death penalty. By contrast, if one killed multiple people, killed a child or a witness to a crime, or tortured someone to death, we might find that murder particularly evil, or “aggravated.” The Georgia reform that the Gregg majority endorsed is to require states to codify such factors. These factors vary from state to state and can change over time, but generally contain a common core of scenarios. In order for a jury to apply the death penalty, it must find that one or more of these factors was present in the crime committed, and decide it outweighs any other factors that might reduce culpability. In theory, this reduces the likelihood that jury sentencing will be arbitrary or guided by prejudice of some sort.

2. States must also allow juries to conduct individualized sentencing when deciding not to sentence someone to death.

While the Court wants states to limit or at least “guide” jury decision-making, it also wants to ensure that juries can decide not to give a death sentence in an individual case if they feel it’s just (this framework creates some tensions, which we’ll address below).

In practice, this means two things. First, the Court will strike down laws that mandate the death penalty for particular crimes and remove the jury’s discretion to grant clemency or reduce a sentence to life in prison. While mandatory sentences can reduce unfair variation in sentencing, they can also lead to the application of harsh punishment that juries may not believe is warranted in a given case. Juries, then, must always maintain the ultimate decision on mitigation in death penalty cases.

Second and similarly, the Court will strike down laws that limit what mitigating factors juries can consider. A mitigating factor is the opposite of an aggravating factor—an element of the crime or the criminal’s background that reduces the culpability or blameworthiness of the offender. Such factors could include the defendant’s mental state, having no prior criminal record, being young, and so on. States can list exemplary mitigating factors to guide the jury, but in contrast to aggravating factors, this codification does not limit jury consideration.

The combination of these factors—increasing guidance and reducing discretion in awarding the death penalty while increasing discretion in granting mercy—aim to make the process fairer and less arbitrary.

3. With rare exceptions, only homicide justifies the death penalty.

At the time of the Founding, the death penalty was applied to a wide range of felonies. Though this narrowed over time, many states still maintained the death penalty for crimes other than first-degree murder in the 1970s. In Gregg, for example, the death penalty was given for armed robbery as well as murder (though this concurrent sentence was struck down by the Georgia Supreme Court prior to federal appeal). Georgia also maintained the death penalty for rape.

Beginning with Gregg and its companion cases, the Court has forbidden states from attaching the death penalty to crimes other than first-degree murder. The Court’s arguments here are twofold.

First, justices have made a simple proportionality argument: only murder merits death. As even most homicides do not result in the death penalty, it cannot be appropriate for lesser (though still serious) crimes such as robbery or rape to lead to a capital sentence.

Second, the historic application of the death penalty for these other crimes—particularly for rape—had strong racial dimensions in many jurisdictions. For example, the death penalty for rape was much more likely to be applied in cases involving a white victim and a non-white felon than any other combination, creating both Eighth Amendment and Fourteenth Amendment Equal Protection problems.

There are rare and narrow exceptions to this rule—the Federal Government, for example, retains the authority to sentence individuals to death for treason or espionage. To date, these exceptions have not been litigated.