Gregg v. Georgia

The Death Penalty Returns

Murder on the Open Road

Troy Gregg and traveling companion were hitchhiking through the South

Fred Simmons and Bob Moore picked them up in Florida and the quartet drove through Georgia

According to Gregg’s companion, Gregg shot and killed Simmons and Moore in the course of robbing them

Gregg and companion drove away

Case Progression Thru Courts

A Georgia jury returned a verdict of death for Gregg

Supreme Court of Georgia affirmed conviction and death sentence

Gregg appealed death sentence to SCOTUS on the grounds that it was “cruel and unusual punishment” in violation of 8th and 14th Amendments

Supreme Court’s Decision

SCOTUS addressed whether death penalty for murder was… Always a violation of 8th and 14th Amendments?

Answer: No

A violation given Georgia’s statutes? Answer: No

No majority opinion; Stewart wrote one Similar case four years prior in Furman

Backdrop: Furman v. Georgia

Furman overturned Georgia man’s death sentence It also left a de facto death penalty moratorium Split decision

Four Justices would have held that capital punishment is not unconstitutional per se

Two Justices would have held that it is unconstitutional Three Justices said Ga. statutes were invalid as applied

but left open the question whether death penalty may ever be imposed

Death Penalty is OK Generally

Comports with public standards of decency After Furman, 35 state legislatures passed death penalty statutes

to get within the decision Congress approved death penalty for air piracy

Comports with “dignity of man” To show punishment does not lead to “unnecessary and wanton”

pain, Stewart points to retribution and deterrence* functions To show proportionality, Stewart simply says murder is “the most

extreme of crimes,” making death appropriate. Additionally…

Historical arguments Founders and Amendment writers contemplated death penalty Courts repeatedly found it not to be cruel and unusual

States should have broad latitude; heavy burden on challenging punishments approved by legislatures

Ga. Statutory Framework OK

Death penalty problematic if handed down in arbitrary and capricious manner (Furman) Revised Ga. statutes, however, guard against

arbitrariness and caprice Bifurcation Guidance to jury (one of 10 conditions for death) Automatic appeal to state Supreme Court

Stewart is unconcerned about layers of discretion or the arbitrariness of the Ga. sentencing system as a whole

Deterrence, Really?

YES Ehrlich study Common sense

NO WAY TO KNOW Justice Stewart Charles Black

NO Subsequent

studies, including Forst

Justice Marshall

Stewart’s Approach in Gregg

Stewart says empirical studies are inherently inconclusive about whether death penalty deters capital crimes Because social conditions in any state are not constant

through time, and social conditions are not the same in any two states, deterrent effect cannot be measured (C. Black)

Stewart assumes some people are deterred by death penalty, and some are not

Concludes state legislatures should evaluate statistical studies because of local expertise and flexibility

The Ehrlich Study

Ehrlich compared execution risk to homicide rate from 1933 to 1969 Execution risk = % of convicted murderers who

were executed Raw data showed positive relationship Multiple regression analysis, controlling for

variables, showed negative relationship Ehrlich estimated that every criminal killed led to

eight lives saved via deterrence

More on Regression Analysis

Accounts for effects of variables

Plot additional variable against capital crime rate, then examine residuals with capital crime/execution axes

Important to account for all relevant variables

Be alert to feedback effects

Problems with Ehrlich study

Passell and Taylor Appearance of deterrence only arose when using unconventional log regression

equation, as opposed to linear equation Without the years 1962-1969, Ehrlich’s study shows no deterrent effect

Avio found no deterrent analogue in Canada Bowers and Pierce questioned Ehrlich’s use of FBI data in lieu of vital

statistics data Passell looked at state-by-state data and found no deterrent effect Klein

Failure to adequately consider feedback Technical manipulations obscured accuracy of his estimates Variables were omitted from analysis Appearance of deterrence disappeared after a variable was introduced to account

for late-period capital crime increase Constructed execution rate as combo of homicide arrest rate, homicide conviction

rate, and number of homicides; led to spurious suggestions of deterrence Forst noted that comparing execution risk and homicide rates on nationwide

basis obscures relationship

Forst vs. Ehrlich

Forst’s study improved on Ehrlich’s in the following ways Focused exclusively on period of substantial

variation (1960s) Removes log/linear inconsistency Incorporates more variables

Forst found that capital punishment did not deter homicide “with respect to a wide range of alternative constructions”

Where that leaves us

Court holds that Ga. death penalty statutes are constitutionally OK

Death penalty is not cruel and unusual punishment

Deterrent value of death penalty remains very much in question

Postscript