After its finding the death penalty unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972), in 1976, the Supreme Court confronted newly enacted death penalty statutes from five states. The cases were 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; and Roberts v. Louisiana, 428 U.S. 325.
In Gregg, rejecting the argument that the death penalty is inherently cruel and unusual punishment, the Court upheld a death sentence for murder, approving the Georgia system of a bifurcated trial in which the guilt and punishment phases are separate, with the jury hearing additional evidence and argument during the punishment phase. The Georgia statute further set out elements of aggravation, one of which must be found beyond a reasonable doubt for death to be imposed, as well as mitigation, that would allow the defendant to avoid the death penalty. Moreover, the Georgia Supreme Court mandatorily reviewed each death sentence to ensure that it was not disproportionate to sentences imposed in similar cases or otherwise on the basis of arbitrary or prejudicial factors.
Again there was no majority opinion, but a joint opinion by Justices Stewart, Stevens, and Powell expressed the plurality view and was agreed with in most respects by an opinion concurring in the judgment by Justice White, joined by Chief Justice Burger and Justice Rehnquist. Justice Blackmun concurred in the judgment as well.
In Jurek the same seven Justice majority upheld a similar scheme in Texas, and in Proffitt the same Justices upheld a Florida scheme in which the sentence was imposed by a judge. In Woodson and Roberts, however, a joint opinion by Stewart, Stevens, and Powell, with Justices Brennan and Marshall concurring in the judgment, struck down mandatory death sentences as generally unduly harsh and unworkably rigid (Woodson, 428 U.S. at p. 293).
Subsequent to these cases, which reinstated the death penalty and suggested a blueprint for constitutionally acceptable death penalty procedures, the Court has imposed a number of other limitations under the Eighth Amendment. In Coker v. Georgia, 433 U.S. 584 (1977) it rejected the death penalty for the rape of an adult woman as disproportionate to the crime, and in Enmund v. Florida, 458 U.S. 782 (1982) it held that the death penalty was also disproportionate for one who neither killed nor intended to kill the victim. In Lockett v. Ohio, 438 U.S. 586 (1978) it held that the defendant must be allowed to present, as a mitigating factor, any (relevant) aspect of a defendants character or record and any of the circumstances of the offense that he wishes. Id. at p. 604. In Thompson v. Oklahoma, 487 U.S. 815 (1988), the Court held that the death penalty could not be applied to a person under the age of sixteen. And in Atkins v. Virginia, U.S., 122 S.Ct. 2242 (2002) it likewise exempted the mentally retarded from execution.
CRAIG M. BRADLEY
References and Further Reading
Cases and Statutes Cited