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The Death Penalty Returns: Gregg v. Georgia

It may have been reasonable for Justices Marshall and Brennan to assume in 1972 that public support for and usage of the death penalty would continue to decline, making their mortarium part of a natural progression towards abolition. Instead, the opposite occurred. The pendulum of public opinion swung back towards harsher punishments, support for the death penalty surged, and many states moved to reinstate or reinvigorate their death penalty statutes. The next twenty years would thus not only see public opinion and state legislatures shift towards support for the death penalty but also a dramatic increase in the number of executions (see Figure 1, above the Furman excerpt).

Furman stood as a barrier to this death penalty revival. However, state legislators and policymakers certainly noted that there were only two votes in favor of finding the death penalty per se unconstitutional. If states made reforms to their death penalty laws that satisfied the other three justices in the majority, the death penalty could presumably resume. Focusing on the critiques these three justices offered, states set up clearer guidelines for jurors in applying the death penalty, as well as creating trials with separate phases for considering guilt and considering the death penalty, each with their own arguments and rules of evidence.

In 1976, the Supreme Court considered death penalty challenges from five states in response to these new frameworks, with Georgia again serving as the leading case. As predicted, Georgia’s reforms—which were seen as a good template for what sort of changes would address the concerns raised in Furman—ended the death penalty moratorium. On a 7-2 vote, the Court upheld Gregg’s death sentence under the updated Georgia law, suggesting that states which modeled their death penalty sentencing schemes after Georgia would be safe from similar Eighth Amendment challenges.

Gregg v. Georgia

428 U.S. 153 (1976)

Facts: Gregg was convicted of armed robbery and murder and sentenced to death. He challenged his death sentence on Eighth Amendment grounds. The sentence was upheld by the Georgia Supreme Court.

Question: Did Gregg’s sentence under Georgia’s new death penalty framework statute violate the Eighth Amendment?

Vote: No, 7-2

For the Court: Justice Stewart

Concurring in the judgment: Justice White

Dissenting opinion: Justice Brennan

Dissenting opinion: Justice Marshall

Judgment of the Court, and opinion of JUSTICE STEWART, JUSTICE POWELL, and JUSTICE STEVENS, announced by JUSTICE STEWART.

The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.

I

The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage…

The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.

At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner’s lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count.

The judge further charged the jury that, in determining what sentence was appropriate, the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.

Finally, the judge instructed the jury that it “would not be authorized to consider [imposing] the penalty of death” unless it first found beyond a reasonable doubt one of these aggravating circumstances;

One — That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore].

Two — That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.

Three — The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the defendant.

Finding the first and second of these circumstances, the jury returned verdicts of death on each count.

The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder… The death sentences imposed for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense, and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders…

We granted the petitioner’s application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as “cruel and unusual” punishment in violation of the Eighth and the Fourteenth Amendments.

II

Before considering the issues presented, it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty… The capital defendant’s guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial…

After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing:

[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions … or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed.

The defendant is accorded substantial latitude as to the types of evidence that he may introduce…

In the assessment of the appropriate sentence to be imposed, the judge is also required to consider or to include in his instructions to the jury “any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances which may be supported by the evidence…”

… Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute. The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to impose that sentence. If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found…

… a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. The report is in the form of a 6 1/2-page questionnaire designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant’s representation, whether race played a role in the trial, and, whether, in the trial court’s judgment, there was any doubt about the defendant’s guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel…

III

We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. In we will consider the sentence of death imposed under the Georgia statutes at issue in this case.

The Court, on a number of occasions, has both assumed and asserted the constitutionality of capital punishment…But until Furman v. Georgia (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se; two Justices would have reached the opposite conclusion, and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed. We now hold that the punishment of death does not invariably violate the Constitution.

A

The history of the prohibition of “cruel and unusual” punishment already has been reviewed at length…

It is clear from the foregoing precedents that the Eighth Amendment has not been regarded as a static concept… Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.

But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.” Trop v. Dulles. This means, at least, that the punishment not be “excessive.” … 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…

B

Of course, the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts…

Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people…

C

… We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question.

The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England…

It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases…

For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se…

Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime, regardless of its depravity and impact on society. This view was accepted by two Justices. Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty, rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid.

The petitioners in the capital cases before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.

The most marked indication of society’s endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death. These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people…

It may be true that evolving standards have influenced juries in recent decades to be more discriminating in imposing the sentence of death. But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases…

As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment…

The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.

In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes, rather than self-help, to vindicate their wrongs…

Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.

Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive…

The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts… Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.

In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification, and thus is not unconstitutionally severe.

Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death, as a punishment, is unique in its severity and irrevocability… But we are concerned here only with the imposition of capital punishment for the crime of murder, and, when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes…

IV

We now consider whether Georgia may impose the death penalty on the petitioner in this case.

A

… Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner…

Furman mandates that, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action…

Jury sentencing has been considered desirable in capital cases in order “to maintain a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’”

But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question. This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure — one in which the question of sentence is not considered until the determination of guilt has been made — is the best answer…

But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given…  It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.

The idea that a jury should be given guidance in its decision-making is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit…

Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner…

… we have embarked upon this general exposition to make clear that it is possible to construct capital sentencing systems capable of meeting Furman’s constitutional concerns.

B

We now turn to consideration of the constitutionality of Georgia’s capital sentencing procedures…

Georgia did act … to narrow the class of murderers subject to capital punishment by specifying 10 statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed. In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, but it must find a statutory aggravating circumstance before recommending a sentence of death.

These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime: was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way, or in a manner that endangered the lives of many persons? In addition, the jury’s attention is focused on the characteristics of the person who committed the crime: does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, “the discretion to be exercised is controlled by clear and objective standards so as to produce nondiscriminatory application.” …

On their face, these procedures seem to satisfy the concerns of Furman…

The petitioner … argues that the requirements of Furman are not met here, because the jury has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. This contention misinterprets Furman… Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice…

Finally, the Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” …

V

The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way, the jury’s discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines…

JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment.

… The issue in this case is whether the death penalty imposed for murder on petitioner Gregg under the new Georgia statutory scheme may constitutionally be carried out. I agree that it may.

I

…

II

…

III

The threshold question in this case is whether the death penalty may be carried out for murder under the Georgia legislative scheme consistent with the decision in Furman v. Georgia. In Furman, this Court held that, as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily, wantonly and freakishly, and so infrequently, that any given death sentence was cruel and unusual. Petitioner argues that, as in Furman, the jury is still the sentencer; that the statutory criteria to be considered by the jury on the issue of sentence under Georgia’s new statutory scheme are vague, and do not purport to be all-inclusive; and that, in any event, there are no circumstances under which the jury is required to impose the death penalty. Consequently, the petitioner argues that the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme declared invalid in Furman.

The argument is considerably overstated. The Georgia Legislature … has plainly made an effort to guide the jury in the exercise of its discretion, while, at the same time, permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail…

… in this case, the Georgia Supreme Court concluded that the death penalty was so rarely imposed for the crime of robbery that it set aside the sentences on the robbery counts, and effectively foreclosed that penalty from being imposed for that crime in the future under the legislative scheme now in existence…

Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that, since prosecutors have the power not to charge capital felonies, they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts… defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt…

Statement of THE CHIEF JUSTICE and JUSTICE REHNQUIST:

We concur in the judgment, and join the opinion of MR. JUSTICE WHITE, agreeing with its analysis that Georgia’s system of capital punishment comports with the Court’s holding in Furman v. Georgia.

JUSTICE BLACKMUN, concurring in the judgment.

I concur in the judgment.

JUSTICE BRENNAN, dissenting. 

… In Furman v. Georgia (1972) (concurring opinion), I read “evolving standards of decency” as requiring focus upon the essence of the death penalty itself, and not primarily or solely upon the procedures under which the determination to inflict the penalty upon a particular person was made…

This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, “moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society. My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point, and that, therefore, the punishment of death, for whatever crime and under all circumstances, is “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion…

Death, for whatever crime and under all circumstances, “is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity… An executed person has indeed ‘lost the right to have rights.’”… 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; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the 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. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity…

JUSTICE MARSHALL, dissenting.

In Furman v. Georgia (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view…

Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that, if they were better informed, they would consider it shocking, unjust, and unacceptable. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.

Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive… The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty — life imprisonment — would do as well…

The two purposes that sustain the death penalty as nonexcessive in the Court’s view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment…

The other principal purpose said to be served by the death penalty is retribution. The notion that retribution can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my Brother WHITE…

My Brothers STEWART, POWELL, and STEVENS offer the following explanation of the retributive justification for capital punishment:

The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.

This statement is wholly inadequate to justify the death penalty. As my Brother BRENNAN stated in Furman, “[t]here is no evidence whatever that utilization of imprisonment, rather than death, encourages private blood feuds and other disorders.” It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.

In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values — that it marks some crimes as particularly offensive, and therefore to be avoided. The argument is akin to a deterrence argument, but differs in that it contemplates the individual’s shrinking from antisocial conduct not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong. This contention, like the previous one, provides no support for the death penalty. It is inconceivable that any individual concerned about conforming his conduct to what society says is “right” would fail to realize that murder is “wrong” if the penalty were simply life imprisonment…

… These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.

There remains for consideration, however, what might be termed the purely retributive justification for the death penalty — that the death penalty is appropriate not because of its beneficial effect on society, but because the taking of the murderer’s life is itself morally good…

… The mere fact that the community demands the murderer’s life in return for the evil he has done cannot sustain the death penalty, for as JUSTICES STEWART, POWELL, and STEVENS remind us, “the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society.” To be sustained under the Eighth Amendment, the death penalty must “compor[t] with the basic concept of human dignity at the core of the Amendment,” the objective in imposing it must be “[consistent] with our respect for the dignity of [other] men.”  Under these standards, the taking of life “because the wrongdoer deserves it” surely must fail, for such a punishment has as its very basis the total denial of the wrongdoer’s dignity and worth…