Troy Leon GREGG, Petitioner,
Judgment of the Court, and opinion of Mr. Justice STEWART, Mr. Justice POWELL, and Mr. Justice STEVENS, announced by Mr. 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.
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 evidence at the guilt trial established that on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p. m. [p. 159] A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.
On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in Asheville, N. C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing Simmons and Moore. He justified the slayings on grounds of self-defense. The next day, while being transferred to Lawrenceville, Ga., the petitioner and Allen were taken to the scene of the shootings. Upon arriving there, Allen recounted the events leading to the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. The petitioner then took his pistol in hand and positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward the car, the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen.
A medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. He further testified that both men had several bruises [p. 160] and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Although Allen did not testify, a police detective recounted the substance of Allen's statements about the slayings and indicated that directly after Allen had made these statements the petitioner had admitted that Allen's account was accurate. The petitioner testified in his own defense. He confirmed that Allen had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simmons and Moore because of fear and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife.
The trial judge submitted the murder charges to the jury on both felony-murder and nonfelony-murder theories. He also instructed on the issue of self-defense but declined to instruct on manslaughter. He submitted the robbery case to the jury on both an armed-robbery theory and on the lesser included offense of robbery by intimidation. 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. [p. 161] 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
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." Tr. 476-477.
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. 233 Ga. 117, 210 S.E.2d 659 (1974). After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases. The death [p. 162] sentences used 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. Id., at 127, 210 S.E.2d, at 667.
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. 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 93 (1976).
considering the issues presented it is necessary to understand
the Georgia statutory scheme for the imposition of the death
The Georgia statute, as amended after our decision in Furman v.
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), retains the death
for six categories of crime: murder, [n. 4] kidnaping for ransom or
[p. 163] the victim is harmed, armed robbery [n. 5] rape, treason, and
aircraft hijacking. 6 Ga.Code Ann.§§ 26-1101, 26-1311,
26- 2001, 26-2201, 26-3301 (1972). The capital defendant's guilt or
is determined in the traditional manner, either by a trial judge or a
in the first stage of a bifurcated trial.
4. Georgia Code Ann. s 26-1101 (1972) provides:If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668, 47 S.E.2d 862 (1948). See Linder v. State, 132 Ga.App. 624, 625, 208 S.E.2d 630, 631 (1974). 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:
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
5. Section 26-1902 (1972) provides:
"A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The offense robbery by intimidation shall be a lesser included offense in the offense of armed robbery. A person convicted of armed robbery shall be punished by death or imprisonment for life, or by imprisonment for not less than one nor more than 20 years."
8. Essentially the same procedures are followed in the case of a guilty plea. The judge considers the factual basis of the plea, as well as evidence in aggravation and mitigation. See Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975).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 . . .." s 27-2534.1(b) (Supp.1975). The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute. 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 [p. 165] in the statute. [n. 9] The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to [p. 166] impose that sentence. s 26-3102 (Supp.1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. s 27- 2534.1(c) (Supp.1975). In jury cases, the trial judge is bound by the jury's rommended sentence. ss 26-3102, 27-2514 (Supp.1975).
9. The statute provides in part:In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider "the punishment as well as any errors enumerated by way of appeal," and to determine:
"(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.
"(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
"(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree. "(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
"(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
"(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in section 27- 2534.1(b) is so found, the death penalty shall not be imposed." s 27- 2534.1 (Supp.1975).
The Supreme Court of Georgia, in Arnold v. State, 236 Ga. 534, 540, 224 S.E.2d 386, 391 (1976), recently held unconstitutional the portion of the first circumstance encompassing persons who have a "substantial history of serious assaultive criminal convictions" because it did not set "sufficiently 'clear and objective standards.' "
A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. s 27-2537(a) (Supp. 1975). 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 [p. 168] the defendant's guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency.
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 Part IV of this opinion, 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. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment. But until Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (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 [p. 169] 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.
The history of the prohibition of "cruel and unusual" punishment already has been reviewed at length. The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The [p. 170] American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing "tortures" and other "barbarous" methods of punishment." Id., at 842.
In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to "torture" and other "barbarous" methods. See Wilkerson v. Utah, 99 U.S. 130, 136 (1879) ("(I)t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ."); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed.2d 519 (1890) ("Punishments are cruel when they involve torture or a lingering death . . ."). See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S.Ct. 374, 376, 91 L.Ed. 422 (1947) (second attempt at electrocution found not to violate [p. 171] Eighth Amendment, since failure of initial execution attempt was "an unforeseeable accident" and "(t)here (was no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution").
But the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that "a principle to be vital, must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910). Thus the Clause forbidding "cruel and unusual" punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 378, 30 S.Ct., at 553. See also Furman v. Georgia, 408 U.S., at 429-430, 92 S.Ct., at 2823-2824 (Powell, J., dissenting); Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 597-598, 2 L.Ed.2d 630 (1958) (plurality opinion).
In Weems the
Court addressed the constitutionality of the Philippine
punishment of Cadena temporal for the crime of falsifying an official
That punishment included imprisonment for at least 12 years and one
in chains, at hard and painful labor; the loss of many basic civil
and subjection to lifetime surveillance. Although the Court
the possibility that "the cruelty of pain" may be present in the
punishment, 217 U.S., at 366, 30 S.Ct., at 549, it did not rely on that
factor, for it rejected the proposition that the Eighth Amendment
only punishments that are "inhuman and barbarous, torture and the
Id., at 368, 30 S.Ct., at 549. Rather, the Court focused on the lack of
proportion between the crime and the offense:
"Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice [p. 172] of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense." Id., at 366-367, 30 S.Ct., at 549.
Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the punishment of denationalization imposed upon a soldier who escaped from an Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, the plurality observed in dicta that "(f)ines, imprisonment and even execution may be imposed depending upon the enormity of the crime." 356 U.S., at 100, 78 S.Ct., at 598.
The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense. It held, in effect, that it is "cruel and unusual" to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: "Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." Id., at 667, 82 S.Ct. at 1421. Most recently, in Furman v. Georgia, supra, three Justices in separate concurring opinions found the Eighth Amendment applicable to procedures employed to select convicted defendants for the sentence of death.
It is clear from the foregoing precedents that the [p. 173] Eighth Amendment has not been regarded as a static conce. As Mr. Chief Justice Warren said, in an oft-quoted phrase, "(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, Supra, 356 U.S. at 101, 78 S.Ct., at 598. See also Jackson v. Bishop, 404 F.2d 571, 579 (CA 8 1968). Cf. Robinson v. California, supra, 370 U.S., at 666, 82 S.Ct., at 1420. 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, see Infra, at 2926-2927, 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, supra, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion). This means, at least, that the punishment not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, supra, 408 U.S., at 392-393, 92 S.Ct., at 2805-2806 (Burger, C. J., dissenting). See Wilkerson v. Utah, 99 U.S., at 136; Weems v. United States, supra, 217 U.S., at 381, 30 S.Ct., at 554. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion) (dictum); Weems v. United States, supra, 217 U.S., at 367, 30 S.Ct., at 549.
Of course, the requirements of the Eighth Amendment
must be applied
with an awareness of the limited role to be played by the courts. This
does not mean that judges have no role to play, for the Eighth
is a restraint upon the exercise of legislative power.
"Judicial review by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not." Furman v. Georgia, 408 U.S., at 313-314, 92 S.Ct., at 2764 (White, J., concurring).
See also Id., at 433, 92 S.Ct., at 2825 (Powell, J., dissenting).
But, while we have an
obligation to insure that constitutional
[p. 175] bounds are not overreached, we may not act ajudges as we might
"Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures." Dennis v. United States, 341 U.S. 494, 525, 71 S.Ct. 857, 875, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring in affirmance of judgment).
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.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. "(I)n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." [p. 176] Furman v. Georgia, supra, 408 U.S., at 383, 92 S.Ct., at 2800 (Burger, C. J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, 408 U.S., at 465-470, 92 S.Ct., at 2842-2844 (Rehnquist, J., dissenting), is enhanced where the specification of punishments is concerned, for "these are peculiarly questions of legislative policy." Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958). Cf. Robinson v. California, 370 U.S., at 664-665, 82 S.Ct., at 1419-1420; Trop v. Dulles, 356 U.S., at 103, 78 S.Ct., at 599 (plurality opinion); In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933. Caution is necessary lest this Court become, "under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country." Powell v. Texas, 392 U.S. 514, 533, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968) (plurality opinion). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, Supra, 408 U.S., at 461- 462, 92 S.Ct., at 2839-2840 (Powell, J., dissenting).
In the discussion to this point we have sought to identify the principles and considerations that guide a court in addressing an Eighth Amendment claim. 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. The common-law rule [p. 177] imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U.S. 183, 197-198, 91 S.Ct. 1454, 1462-1463, 28 L.Ed.2d 711 (1971 And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id., at 199-200, 91 S.Ct., at 1463-1464. See Woodson v. North Carolina, 428 U.S. 280, 289-292, 96 S.Ct. 2978, 2984-2985, 49 L.Ed.2d 944.
is apparent from the text of the Constitution itself that the
existence of capital punishment was accepted by the Framers. At the
the Eighth Amendment was ratified, capital punishment was a common
in every State. Indeed, the First Congress of the United States enacted
legislation providing death as the penalty for specified crimes. C. 9,
1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as
Eighth, contemplated the continued existence of the capital sanction by
imposing certain limits on the prosecution of capital cases:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . .; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . ."
And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.
For nearly two centuries, this Court,
repeatedly and [p. 178]
often expressly, has recognized that capital punishment is not invalid
Per se. In Wilkerson v. Utah,99 U.S., at 134-135, where the Court found
no constitutional violation in inflicting death by public shooting, it
"Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment."
Rejecting the contention that death by electrocution was "cruel and unusual," the Court in In re Kemmler, supra, 136 U.S., at 447, 10 S.Ct., at 933 reiterated:
"(T)he punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."
Again, in Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464, 67 S.Ct., at 376, the Court remarked: "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." And in Trop v. Dulles, 356 U.S., at 99, 78 S.Ct., at 597, Mr. Chief Justice Warren, for himself and three other Justices, wrote:
"Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."
[p. 179] 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
of at least 35 States [n. 23] have enacted new statutes that provide
the [p. 180] death penalty for at least some crimes that result in the
death of another person. And the Congress of the United States, in
enacted a statute providing the death penalty for aircraft piracy that
results in death. [n. 24] These recently adopted statutes have
to address the concerns expressed by the Court in Furman Primarily (i)
by specifying the factors to be weighed and the procedures to be
in deciding when to impose a capital sentence, or (ii) by making the
penalty mandatory for specified crimes. But all of the post-Furman
make clear that capital punishment [p. 181] itself has not been
by the elected representatives of the people.
23. Ala.H.B. 212, ss 2-4, 6-7 (1975); Ariz.Rev.Stat.Ann. ss 13-452 to 13-454 (Supp.1973); Ark.Stat.Ann. s 41-4706 (Supp.1975); Cal.Penal Code ss 190.1, 209, 219 (Supp.1976); Colo.Laws 1974, c. 52, s 4; Conn.Gen.Stat.Rev. ss 53a-25, 53a-35(b), 53a-46a, 53a-54b (1975); Del.Code Ann. tit. 11, s 4209 (Supp.1975); Fla.Stat.Ann. ss 782.04, 921.141 (Supp.1975-1976); Ga.Code Ann. ss 26-3102, 27- 2528, 27-2534.1, 27-2537 (Supp.1975); Idaho Code s 18-4004 (Supp.1975); Ill.Ann.Stat. c. 38, ss 9-1, 1005-5-3, 1005-8-1A (Supp.1976-1977); Ind.Stat.Ann. s 35-13-4-1 (1975); Ky.Rev.Stat.Ann. s 507.020 (1975); La.Rev.Stat.Ann. s 14:30 (Supp.1976); Md.Ann.Code, art. 27, s 413 (Supp.1975); Miss.Code Ann. ss 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp.1975); Mo.Ann.Stat. ss 559.009, 559.005 (Supp.1976); Mont.Rev.Codes Ann. s 94-5-105 (Spec.Crim.Code Supp.1976); Neb.Rev.Stat. ss 28-401, 29-2521 to 29-2523 (1975); Nev.Rev.Stat. s 200.030 (1973); N.H.Rev.Stat.Ann. s 630:1 (1974); N.M.Stat.Ann. s 40A-29-2 (Supp.1975); N.Y. Penal Law s 60.06 (1975); N.C.Gen.Stat. s 14-17 (Supp.1975); Ohio Rev.Code Ann. ss 2929.02- 2929.04 (1975); Okla.Stat.Ann. tit. 21, ss 701.1-701.3 (Supp.1975- 1976); Pa.Laws 1974, Act No. 46; R.I.Gen.Laws Ann. s 11-23-2 (Supp.1975); S.C.Code Ann. s 16-52 (Supp.1975); Tenn.Code Ann. ss 39-2402, 39- 2406 (1975); Tex.Penal Code Ann. s 19.03(a) (1974); Utah Code Ann. ss 76-3-206, 76-3-207, 76-5-202 (Supp.1975); Va.Code Ann. ss 18.2- 10, 18.2-31 (1976); Wash.Rev.Code ss 9A.32.045, 9A.32.046 (Supp.1975); Wyo.Stat.Ann. s 6-54 (Supp.1975).In the only statewide referendum occurring since Furman And brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), that the death penalty violated the California Constitution.
24. Antihijacking Act of 1974, 49 U.S.C. ss 1472(i), (n) (1970 ed., Supp. IV).
The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. See Furman v. Georgia, 408 U.S., at 439-440, 92 S.Ct., at 2828-2829 (Powell, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1 (1966). The Court has said that "one of the most important functions any jury can perform in making . . . a selection (between life imprisonment and death for a defendant convicted in a capital case) is to maintain a link between contemporary community values and the penal system." Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968). It may be true that evolving standards have influenced juries in [p. 182] 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. See Furman v. Georgia, supra, 408 U.S., at 388, 92 S.Ct., at 2803 (Burger, C. J., dissenting). Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman, and by the end of March 1976, more than 460 persons were subject to death sentences.
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. Trop v. Dulles, 356 U.S., at 100, 78 S.Ct., at 597 (plurality opinion). Although we cannot "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of [p. 183] penology," Furman v. Georgia, supra, 408 U.S., at 451, 92 S.Ct., at 2834 (Powell, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U.S., at 135-136; In re Kemmler, 136 U.S., at 447, 10 S.Ct., at 933.
The death penalty is said to serve two principal social
retribution and deterrence of capital crimes by prospective offenders.
28. Another purpose that has been discussed is the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future. See People v. Anderson, 6 Cal.3d 628, 651, 100 Cal.Rptr. 152, 493 P.2d 880, 896, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972); Commonwealth v. O'Neal, supra, 339 N.E.2d, at 685-686 (1975).In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. [n. 29] 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.
29. See H. Packer, Limits of the Criminal Sanction 43-44 (1968)."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." Furman v. Georgia, supra, 408 U.S., at 308, 92 S.Ct., at 2761 (Stewart, J., concurring).
30. Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke to this effect before the British Royal Commission on Capital Punishment: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 [p. 185] simply have bn inconclusive. As one opponent of capital punishment has said:
"Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else . . .. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong- doer deserves it, irrespective of whether it is a deterrent or not." Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).
A contemporary writer has noted more recently that opposition to capital punishment "has much more appeal when the discussion is merely academic than when the community is confronted with a crime, or a series of crimes, so gross, so heinous, so cold-blooded that anything short of death seems an inadequate response." Raspberry, Death sentence, The Washington Post, Mar. 12, 1976, p. A27, cols. 5-6.
"(A)fter all possible inquiry,
including the probing of all possible
methods of inquiry, we do not know, and for systematic and easily
reasons cannot know, what the truth about this 'deterrent' effect may
. . . .
"The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A 'scientific' that is to say, a soundly based conclusion is simply impossible, and no methodological path out of this tangle suggests itself." C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25-26 (1974).
Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant [p. 186] deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act. And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.
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. Furman v. Georgia, supra, 408 U.S., at 403-405, 92 S.Ct., at 2810-2812 (Burger, C. J., dissenting). 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 [p. 187] 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 dea 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
Furman v. Georgia, 408 U.S., at 286-291, 92 S.Ct., at 2750- 2753
J., concurring); Id., at 306, 92 S.Ct., at 2760 (Stewart, J.,
When a defendant's life is at stake, the Court has been particularly
to insure that every safeguard is observed. Powell v. Alabama, 287 U.S.
45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932); Reid v. Covert, 354 U.S.
1, 77, 77 S.Ct. 1222, 1262, 1 L.Ed.2d 1148 (1957) (Harlan, J.,
in result). But we are concerned here only with the imposition of
punishment for the crime of murder, and when a life has been taken
by the offender, [n. 35] we cannot say that the punishment is
disproportionate to the crime. It is an extreme sanction, suitable to
most extreme of crimes.
35. We do not address here the question whether the taking of the criminal's life is a proportionate sanction where no victim has been deprived of life for example, when capital punishment is imposed for rape, kidnaping, or armed robbery that does not result in the death of any human being.We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.
* * *
Gregg v. Georgia, 428 U.S. 153 (1976) (pts IV & V)