CAPITAL PUNISHMENT CASES OF 1976 Gregg v. Georgia, 428 U.S. 153 Jurek v. Texas, 428 U.S. 262 Proffitt v. Florida, 428 U.S. 242 Woodson v. North Carolina, 428 U.S. 280 Roberts v. Louisiana, 428 U.S. 325 Green v. Oklahoma, 428 U.S. 907

Writing for the Supreme Court in McGautha v. California (1971), only a year before the capital punishment cases of 1972, Justice john marshall harlan said, "To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can fairly be understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." Yet, in Furman v. Georgia (1972), by declaring unconstitutional statutes that permitted arbitrary, capricious, or discriminatory imposition of the death penalty, the Court challenged the Congress and the various state legislatures to write new statutes that did express in advance the characteristics that would allow the sentencing authorities to distinguish between what is properly a capital and what is properly a noncapital case. The statutes involved in the 1976 cases were drafted in the attempt to meet these requirements.

Three states (North Carolina, Louisiana, Oklahoma) attempted to meet them by making death the mandatory sentence in all first-degree murder cases, thereby depriving juries of all discretion, at least in the sentencing process. By the narrowest of margins, the Court found these mandatory sentencing laws unconstitutional. Justices william j. brennan and thurgood marshall held to their views expressed in the 1972 cases that the death penalty is unconstitutional per se. In the 1976 cases they were joined by Justices potter stewart, lewis f. powell, and john paul stevens (new on the Court since the 1972 decisions) who held, in part, that it was cruel and unusual to treat alike all persons convicted of a designated offense. Their view was that no discretion is as cruel as unguided discretion.

The three statutes upheld in 1976 (those from Georgia, Texas, and Florida) permitted jury sentencing discretion but attempted to reduce the likelihood of abuse to a tolerable minimum. All three statutes, and especially the one from Georgia, embodied procedures intended to impress on judge and jury the gravity of the judgment they are asked to make in capital cases. For example, all three required the sentencing decision to be separated from the decision as to guilt or innocence. In one way or another, all three implied that a sentence of death must be regarded as an extraordinary punishment not to be imposed in an ordinary case, even an ordinary case of first-degree murder. For example, the Georgia law required (except in a case of treason or aircraft hijacking) a finding beyond a reasonable doubt of the presence of at least one of the aggravating circumstances specified in the statute (for example, that the murder "was outrageously and wantonly vile, horrible and inhuman"), and required the sentencing authority to specify the circumstance found. In addition, the trial judge was required to instruct the jury to consider "any mitigating circumstances" (an element that was to play an important role in the 1978 capital punishment cases). Finally, Georgia required or permitted an expedited appeal to or review by the state supreme court, directing that court to determine whether, for example, "the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor," or was "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant."

These statutes went to great lengths to do what Harlan in McGautha had said could not be done but which, in effect, the Court in 1972 had said must be done: to characterize in advance the cases in which death is an appropriate punishment, or in which the sentencing authority (whether judge or jury) is entitled to decide that the death penalty is appropriate. With only Brennan and Marshall dissenting, the Court agreed that all three statutes met the constitutional requirements imposed four years earlier.

From the 1976 decisions emerged the following rules: the death penalty in and of itself is not a cruel and unusual punishment; a death sentence may not be carried out unless the sentencing authority is guided by reasonably clear statutory standards; in imposing the penalty, the sentencing authority must consider the characteristics of the offender and the circumstances of his offense; mandatory death sentences for murder (and presumably for all other offenses) are unconstitutional; the punishment must not be inflicted in a way that causes unnecessary pain; finally, the death penalty may not be imposed except for heinous crimes ("the punishment must not be grossly out of proportion to the severity of the crime").

The Court's decisions were a bitter disappointment not only to the hundreds of persons on death row who now seemingly faced the real prospect of being executed but also to the equally large number of persons who had devoted their time, talent, and in some cases their professional careers to the cause of abolishing the death penalty.

They had been making progress toward that end. In other Western countries, including Britain, Canada, and France, the death penalty had either been abolished by statute or been allowed to pass into desuetude; in the United States almost a decade had passed since the last legal execution. In this context it was easy for the opponents of capital punishment to see the Supreme Court's 1972 decision as a step along the path leading inevitably to complete and final abolition of the death penalty. This hope was dashed, at least temporarily, in 1976.

Not only did the Court for the first time squarely hold that "the punishment of death does not invariably violate the Constitution" but it also gave explicit support to the popular principle that punishment must fit the crime and that, in making this calculation, the community may pay back the worst of its criminals with death. Prior to 1976, the capital punishment debate had focused on the deterrence issue, and a major effort had been made by social scientists to demonstrate the absence of evidence showing the death penalty to be a more effective deterrent than, for example, life imprisonment. This opinion was challenged in 1975 by University of Chicago econometrician Isaac Ehrlich. Employing multiple regression analysis, Ehrlich concluded that each execution might have had the effect of deterring as many as eight murders. His findings were made available to the Court in an amicus curiae brief filed in a 1975 case by the solicitor general of the United States. In the 1976 opinion announcing the judgment of the Court, Stewart cited the Ehrlich study, acknowledged that it had provoked "a great deal of debate" in the scholarly journals, but nevertheless concluded that, at least for some potential murderers, "the death penalty undoubtedly is a significant deterrent." If this conclusion remains undisturbed, the focus of the capital punishment debate will shift to the issue of human dignity or the propriety of retribution. Thus, Stewart's statement on paying criminals back takes on added significance. With the concurrence of six Justices, he said, "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."

This sanctioning of the retributive principle especially disturbed Marshall, one of the two dissenters. Along with many opponents of the death penalty, he would be willing to allow executions if they could be shown to serve some useful purpose—for example, deterring others from committing capital crimes—but to execute a criminal simply because society demands its pound of flesh is, he said, to deny him his "dignity and worth." Why it would not deprive a person of dignity and worth to use him (by executing him) in order to influence the behavior of other persons, Marshall did not say; apparently he would be willing to accept society's calculations but not its moral judgments.

An unwillingness to accept society's moral judgments best characterizes the opposition to capital punishment, a fact reflected in the differences between popular and sophisticated opinion on the subject. Sophisticated opinion holds that the death penalty does not comport with human dignity because, as Brennan (the other dissenter) said, it treats "members of the human race as nonhumans, as objects to be toyed with and discarded." Popular opinion holds that to punish criminals, even to execute them, is to acknowledge their humanity, insofar as it regards them, as it does not regard other creatures, as responsible moral beings. Sophisticated opinion agrees with abe fortas who, after he left the Supreme Court, argued that the "essential value" of our civilization is the "pervasive, unqualified respect for life"; this respect for life forbids the taking of even a murderer's life. Popular opinion holds that what matters is not that one lives but how one lives, and that society rightly praises its heroes, who sacrifice their lives for their fellow citizens, and rightly condemns the worst of its criminals who prey upon them.

In 1976, seven members of the Supreme Court agreed that society is justified in making this severe moral judgment, but this agreement on the principle may prove to be less significant than the Justices' inability to join in a common opinion of the Court. Embodied in that inability were differences in the extent to which the Justices were committed to the principle, and it could have been predicted that, in future cases, some of them would find reason not to apply it.

Walter Berns
(1986)

Bibliography

Berns, Walter 1979 For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books.

Davis, Peggy C.; Wolfgang, Marvin E.; Gibbs, Jack P.; van den Haag, Ernest; and Nakell, Barry 1978 Capital Punishment in the United States: A Symposium. Criminal Law Bulletin 14:5–80.

Ehrlich, Isaac 1975 The Deterrent Effect of Capital Punishment. American Economic Review 65:397–417.

England, Jane C. 1977 Capital Punishment in the Light of Constitutional Evolution: An Analysis of Distinctions Between Furman and Gregg. Notre Dame Lawyer 52:596–610.

Gillers, Stephen 1980 Deciding Who Dies. University of Pennsylvania Law Review 129:1–124.

Lempert, Richard O. 1981 Desert and Deterrence: An Assessment of the Moral Bases for Capital Punishment. Michigan Law Review 79:1177–1231.