The Burger Court Opinion
Writing Database
Gregg v. Georgia
429 U.S. 1301 (1976)
Paul J. Wahlbeck, George Washington University
James F. Spriggs, II, Washington University in St. Louis
Forrest Maltzman, George Washington University
lt.prtute (Caurt of ti Pritrttatriy
paolCut.gion, 71). 4. 2rf)i.
CHAMBERS OF
THE CHIEF JUSTICE
May 4, 1976
MEMORANDUM TO THE CONFERENCE:
The assignments in this final "round" are even more
difficult than usual. However, just as I completed
what seems a fair solution Byron advised that his
approach to the capital cases may no longer command
a majority. Accordingly, as is the appropriate step
on finding that he may not be reflecting the present
majority thinking, he tenders the cases back for reassignment.
In the circumstances I suggest we meet at 10:00 a. m.
Wednesday to "clear the air".
Regards,
oCte
G
eD
0
6
,$npreutt Our/
a tilt AnittZr „Stake
P. (4- 2111li
-ka C.
CHAMBERS OF
THE CHIEF JUSTICE
May 5, 1976
Re: Capital Cases
MEMORANDUM TO THE CONFERENCE:
This is to confirm the assignment of the above cases
for a "joint opinion" for which Potter will take lead responsibility.
This in effect flows from a joint assignment in the hope
that we can minimize separate writing. Potter, Lewis and John
will (a) undertake to produce an opinion holding that the Eighth
Amendment in and of itself does not foreclose state or federal
power to impose capital punishment; (b) opinions dealing with
the five separate cases.
The form of the opinion can await the suggestions of
Potter, et al.
;Regards,
2
eD
e§ivrentt (Court of the Pritar ,tatto
Paoirtingtott, !3.
(4. 2lipkg
CHAMBERS OF
June 23, 1976
THE CHIEF JUSTICE
Re: 30 Capital Cases
MEMORANDUM TO THE CONFERENCE:
There was some suggestion at Conference that I treat
the remaining capital cases as a usual "cert" listing
and submit a "discuss" list.
Since I had serious doubts that this would be a desirable
procedure for these cases, the list you received covers
all 30 cases.
es
e)
eo
S
co
S
S
0
0
04o
r)
0
SQ
eD
co)
REPRODU
NI FROM THE COLLECTIONS OF THE MANUSCRIPT 'DIVISIONT'zuRARTNIF 000N et'
Anprtint 0.10-net of tits Iluiter Autry
tint.
p. QT.
arpkg
CHAMBERS OF
THE CHIEF JUSTICE
June 30, 1976
Re: Capital Cases
Dear Byron:
Please show me as joining you as follows:
1.
In 74-6257 - Gregg v. Georgia, I join you and believe it is
acceptable to Bill to have his separate statement read, "The Chief Justice
and Mr. Justice Rehnquist join, et. . . ."
2.
In 75-5706 - Proffitt v. Florida, I join you.
3.
In 75-5394 - Jurek v. Texas, I would like to join you in the
same ways as Harry requested. Unless Harry disagrees, perhaps he
and I can be shown in the conjunctive, with our respective dissents
jump-cited to the appropriate page.
In 75-5844 - Roberts v. Louisiana, please show me as joining
4.
you and also Harry, perhaps in the conjunctive with Harry, if that is agreeable to him. Our respective dissents in Furman can be jump-cited.
In 75-5491 - Woodson v. North Carolina, please show me as
5.
joining you.
Regards,
Mr. Justice White
Copies to the Conference
IA
13
Ire ciedw44-ei 11
6 lg. P
4,44 440
.2tirrttitt (mart of tilt ltnitett 2.1-ofto
Naldringtalt, P. Q. 2014g
CHAMBERS OF
THE CHIEF JUSTICE
July 20, 1976
Re: Capital Cases
MEMORANDUM TO THE CONFERENCE:
I learned early today that a petition for rehearing and for a
stay had been filed in the Georgia, Louisiana and Texas cases in which
the convictions were affirmed. Pursuant to our established procedures,
the motion for a stay pending the decision of the Court on the petition
for rehearing was addressed to Lewis Powell as the Circuit Justice.
When I found that no disposition had been made as of today, I called
Lewis to inquire as to the status of the matter since we were getting
inquiries. He informed me that he and John Stevens had consulted
and both of them thought a stay was indicated. At that point, I believe
Lewis told me he had not been able to reach Potter in California.
I expressed my view, to which I still adhere, that, analytically,
the first step was to decide whether or not the Court would vote to grant
rehearing; if a majority were firm in a decision not to grant rehearing,
denial of the stay would ordinarily follow as a matter of course.
Obviously in a capital case, we would approach the questions with
greater caution and sensitivity. A countervailing consideration is the
importance of not creating false expectations, which might render these
decisions open to a charge by petitioners that our action is inherently
"cruel" unless we really intend to grant rehearing.
Later in the afternoon, shortly before preparing this memorandum,
Lewis called me to advise that he had reached Potter and that Potter
concurred with his view and John's that the stay should be granted.
It seems to me that there are institutional problems in this
situation. Obviously, analysis of the Furman case and the five cases
that came down two weeks ago today, will continue to arouse a certain
amount of speculation as to possible shifts in individual positions. To
grant a stay at this time opens a genuine risk that some will read into
it a willingness on the part of the Court to reconsider the three cases
in which convictions and judgments were affirmed.
In talking to Lewis, I expressed my tentative view that I
considered the matter of such gravity and such possible institutional
importance that a special session might be called for. To this end, I
put in calls for Potter and Byron (as July 6 authors of the two plurality
opinions) to determine whether, if necessary, they would be able to
return to Washington for a hearing on this. Meanwhile, Bill Rehnquist
called and I reported to him. Time has not allowed me to reach the
others up to now. The problem of calling a special session is one which
I do not, in any sense, relish and one of the negative aspects is that it
would focus undue attention on the petition for rehearing and probably
lead to speculation as to whether the Court was in the process of
changing its decision from the holdings two weeks ago today. As soon
as copies of the petition are available, each reader will be able to judge
whether any new matter is presented to warrant rehearing. On that
score, I am prepared, for the moment, to rely on Lewis' statement
that the petition for rehearing presented no new matter or any matter
not considered and resolved by the Court on July 6. No papers have
yet reached my office and, of course, I would not be willing to take
any position finally until I have read the petition.
Given Lewis' view that a stay be entered, it seems to me that
we should now each examine the petition for rehearing and decide, either
individually or if necessary around the table, whether rehearing should
be granted. If the petition has no merit, of course, a stay should not
be granted under well established standards. At least I have always
thought that to be the approach and I am not impressed with the idea that
we should grant a stay pending consideration of a non-meritorious
petition for rehearing. As soon as I have returns on my calls to
Potter in California and Byron in Colorado, I will have an opportunity
to explore their availability for a special sitting should that be indicated.
I will try to reach Bill Brennan and Thurgood as soon as possible.
Regards,
P. S. Lewis advises me he will be calling all members of the Court
tomorrow and this may make it unnecessary to pursue calls to you.
REPRODU
i
FROM
THE
COLLECTIONS OF THE NANUSCRIPT'DMSIONTZIEHAET /"CON
The Chief Justice
Justice
SUPREME COURT OF THE UNITED STATES
r
Just;
O.T. 1976
14.r.
Nos. 74-6257, 75-5394, 75-5491, 75-5706 & 75-58441,
Troy Leon Gregg, Petitioner
)
v.
)
Georgia
No. 74-6257
)
)
Jerry Lane Jurek, Petitioner
)
v.
)
Texas
No. 75-5394
)
)
James Tyrone Woodson and
)
)
Luby Waxton, Petitioners
v.
)
North Carolina
No. 75-5491
)
)
Charles William Proffitt, Petitioner
)
)
v.
Florida
No. 75-5706
)
)
Stanislaus Roberts
)
v.
)
)
)
Louisiana
No. 75-5844
[June
1976]
Petition for Writ of Certiorari
to the Supreme Court of Georgia
Petition for Writ of Certiorari
to the Court of Criminal Appeals
of Texas
Petition for Writ of Certiorari
to the Supreme Court of North
Carolina
Petition for Writ of Certiorari
to the Supreme Court of Florida
Petition for Writ of Certiorari
to the Supreme Court of Louisiana
.1.41-1-rutt (!Hurt of 'Palter $5tatto
PaskingtArn, p. (c. 2ug)g
CHAMBERS OF
J USTICE POTTER STEWART
May 7, 1976
Re: Capital Cases
Dear Chief,
After considerable thought and discussion, Lewis,
John, and I have tentatively agreed upon the form that our joint
opinions in these cases will take. It is our present intention to
write an opinion in each case, for a total of five opinions.
As of now, we would affirm in No. 74-6257, Gregg,
No. 75-5394, Jurek, and No. 75-5706, Proffitt, and reverse in
No. 75-5491, Woodson, and No. 75-5844, Roberts. Each
opinion will reject the contention that the Eighth and Fourteenth
Amendments foreclose the imposition and execution of a death
sentence under any circumstances. This issue will be dealt
with in detail in the lead opinion (Gregg or Proffitt) and that discussion will be incorporated by reference in each of the other
four opinions. It would be our hope that four other members of
the Court will be able to join at least those parts of all five
opinions.
Contrary to the indication in your memorandum of
May 5, we do not plan to produce a separate opinion "holding
that the Eighth Amendment in and of itself does not foreclose
State or Federal power to impose capital punishment. " In the
interest of avoiding misunderstanding, and of providing you and
the other members of the Court ample opportunity to consider
whether you wish to write separately, I thought it wise to clarify now what Lewis, John, and I hope eventually to produce.
Sincerely yours,
The Chief Justice
Copies to the Conference
Ouvrtutt (Court of tilt Anita Atatto
Alitoitingtart, p. (C. zopig
CHAMBERS OF
JUSTICE POTTER STEWART
May 27, 1976
Re: Capital Cases
Dear Lewis and John,
I plan to leave town this afternoon, not to return until
late in the day on Monday. In order not to lose time, I transmit
herewith to each of you copies of drafts of "Part III" in the
Georgia and North Carolina cases.
I am sure that both of these drafts can be improved
by your suggestions as to substance and style. Perhaps early
next week you can let me know of any basic deficiencies that
either of you perceives.
Sincerely yours,
Mr. Justice Powell
Mr. Justice Stevens
Nfr
suprrnxr (401trt of HIT lanittb estates
D. zoA4g
CHAMBERS OF
TICE POTTER STEWART
June 30, 1976
MEMORANDUM TO THE CONFERENCE
Re: Capital Cases
Enclosed are copies of the proposed lineups
in these five cases. Please let me know promptly
if any changes need to lie made.
0
C
S. I
0
1-03
Bt
4
S
"
tV
O
$1
0
0
va
,Supreme
(Court of
*Pita ,States
w
Atoltington,p. 211
CHAMBERS OF
JUSTICE BYRON R. WHITE
June 23, 1976
MEMORANDUM TO THE CONFERENCE
Re: No. 74-6257 - Gregg v. Georgia
Although I had hoped my version of Gregg
v. Georgia would be back from the printer long
before now, Mr. Cornio has not been able to get
to it because of tlie pressure of opinions coming down. Hence, I am circulating a Xeroxed
copy of what I have sent to him.
0
REPRODUOID FROM TUE COLLECTIONS OF THE
MANUSCRIPT'DIVISIONVEURARVOMO
To: The
Mr.
Mr.
L.)e.
Mr.
Mr.
Mr.
Mr.
Chief Justice—
Justice Brennan \,/
Justice Stewart
Justice Marshall
Justice Blackmun
Just ca Powell
Juice Rehnquist
Justice Stevens
From: Mr. Justice White
PAiej
Circulatod:
1s9TRAFT
Recircula ted:
SUPREME COURT OF THE UNITED STATES
No. 74-6257
Troy Leon Gregg, Petitioner, On Writ of Certiorari tq
v.
the Supreme Court of
Georgia.
State of Georgia.
[June —, 1976]
concurring in the judgment.
In Furman v. Georgia, 408 U. S. 238 (1972), this
Court held the death penalty as then administered in
Georgia to be unconstitutional. That same year the
Georgia Legislature enacted a new statutory scheme under
which the death penalty may be imposed for several
offenses, including murder. 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
Under the new Georgia statutory scheme a person
convicted of murder may receive a sentence either of
death or of life imprisonment. Ga. Code Ann. § 26-1101
(1972) 1 Under Georgia Code Ann. § 26-3102 (1975
IA4. JUSTICE WHITE,
1 Section 26-1101 provides, as follows:
"Murder. (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
3-6"
-7e
RF2RODU FROM THE COLLECTIONS OF TEE MA.NIISCRIPT .DWISIONrTIERARVOFICONSRES
To: The Chief Justice
Pp. iiiiidg,10
STYLISTIC CHANGES THROUGHOUT.
Mr. Justice Brennan
Mr. Justice Sbewaa't
%/Mi. . Justice Marstall
Mr. Justica Bian
Mr. JvLsti,.:e
Mr. Justice
Mr. Justice Steval:s
Erom: Mr. Justice
Circulated:
Recirculated:
2nd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 74-6257
Troy Leon Gregg, Petitioner, On Writ of Certiorari to
v.
the Supreme Court of
Georgia.
State of Georgia.
[June —, 1976]
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE
and MR. JUSTICE REHNQUIST join, concurring in the
judgment.
In Furman v. Georgia, 408 U. S. 238 (1972), this
Court held the death penalty as then administered in
Georgia to be unconstitutional. That same year the
Georgia Legislature enacted a new statutory scheme under
which the death penalty may be imposed for several
offenses, including murder. 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
Under the new Georgia statutory scheme a person
convicted of murder may receive a sentence either of
death or of life imprisonment. Ga. Code Ann. § 26-1101
(1972). 1 Under Georgia Code Ann. § 26-3102 (1975
1 Section 26-1101 provides, as follows:
"Murder. (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
‘7,3ie
At 1
1976
610- Z•1/74.0.1/2.<=
Xe
C^ /jam
ee-*-7
/
4-9t4-.
Mr.
Chi e
an
;u11:: Stewart
a
Justine Blackmun
Mr.
^r. Justine Powell
Mr. Justice Rehnquist
Mr.
From: Mr. Justice Marshall
dJa-)-17-e-yze,(
4.dL
MR. JUSTICE MARSHALL, dissenting.
tr).
°;!
Circulated:
JUN 5 1976
Recirculated:
In Furman v. Georgia, 408 U. S. 238, 314 (1972),
a-tizt.e9.6A.k, I.set forth at some length my views on the basic issue presented
60.411
4f4u,L5L...
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.
I have no intention of retracing the "long and tedious
journey," id., at 370, that led to my conclusion in Furman.
otiV klA,L
My sole purposes here are to consider the suggestion that
my conclusion in Furman has been undercut by developments
since then, and briefly to evaluate the basis for my Brethren's
holding that the extinction of life is a permissible form of
punishment under the Cruel and Unusual Punishments Clause.
In Furman I concluded that the death penalty is
constitutionally invalid for two reasons. First, the death
penalty is excessive. Id., at 331-332; 342-359. And second,
the American people, fully informed as to the purposes of
the death penalty and its liabilities, would in my view reject
it as morally unacceptable. Id., at 369-369.
RODU FROM THE COLLECTIONS OF THE MANIISCRIPVDMSIONrIMBRARYMFPCON
To: The
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Chief Justice
Justice Brennan
Justice Stewart
Justice White
Justice Marshall
Justice Powell
Justice Rehnquist
Justice Stevens
Erom: Mr. Justice Blackmun
.
No. 74 -6257 - Gregg v. Georgia
Circulated .
6/07 9/76'
Recirculated:
MR. JUSTICE BLACKMUN, concurring.
I concur in the result. See Furman v. Georgia, 408 U. S.
238, 405-414 (1972) (Blackmun, J. , dissenting), and id. , at 375,
414 and 465.
I/A I,
il:frame (Court of tItt Pifer ,51atto
`,
l il ingtrat, P. Q. zaPkg
Pu r
7 (7 7
CHAMBERS OF
JUSTICE HARRY A. BLACKMUN
June 30, 1976
Re: Capital Cases
Dear Potter:
For line-up purposes, I do not contemplate any further
change in my positionheretofore indicated.
"0
0
0
2
Mr. Justice Stewart
cc: Mr. Justice White
0
ti
00
eD
FROM THE COLLECTIONS OF THE NANUSCRIPTDIVISICRWITERARYMPTONG$4#
To: The Chief Justice
Mr. Justice Brennan
Mr. Justice StawArt
Mr. Justice White
Mr. Justice Marshall
Mr. JuJtice PJJell
Yr. justlo
St
Mr. justice Stevens
From: Mr. justice Blackmun
Circulated:
rem
irculated:
SUPREME COURT a `1St UNIUD STA
to
•
No. 74-6257
Troy Leon Gregg, Petitioner, On Writ of Certiorari to
the Supreme Court of
v.
Georgia.
State of Georgia.
[June —, 1976]
concurring.
See Furman
MR. JUSTICE BLACKMUN,
v. Georgia, 408
U. S. 238, 405-414 (1972) (BLACKMUN, J., dissecting)„
and id., at 375,414, and 465.
I concur in the result.
W36/76)
Attrunte aloud of tilt Anita Atatto
?Susilingtort, (c. 2014g
CHAMBERS OF
July 22, 1976
JUSTICE HARRY A. BLACKMUN
Re: Capital Cases
Dear Lewis:
This will supplement our telephone conversation of July 21.
I have now carefully reviewed the Consolidated Rehearing Petition
and the Application for a Stay of Issuance of Mandate. There is
nothing here that would prompt me to vote for rehearing. I suppose
you are not asking for a formal vote from me, but if you were I
would vote to deny the Application for a Stay.
Sincerely,
Mr. Justice Powell
cc: The Conference
/fr
,§Dtprentt Puri of all Aniteb 0Stafto
Ottohiniatint,
p. (c. 2rrg4g
March 2, 1976
CHAMBERS OF
JUSTICE LEWIS F. POWELL, JR.
No. 74-6257 Gregg v. Georgia
No. 75-5491 Woodson v. North Carolina
No. 75-5706 Proffitt v. Florida
Dear Chief:
I am dismayed to learn that the briefs by petitioners
in the above cases are not being printed.
I have now received several pounds of barely legible
material in lieu of printed briefs. With all that we have
on us in these and other cases, and in view, of the importance
of the capital cases, I would have thought it especially
desirable to have these particular briefs printed. My
understanding is that Congress appropriates funds for this
purpose.
0
0
0
V
=
O
Perhaps it should not be so, but I am frank to say
that I find it measurably more difficult to consider carefully
material that is reproduced inthis cumbersome and inconvenient i
form.
F
Sincerely,
GamThe Chief Justice
lfp/ss
cc: The Conference
-•
May 1, 1976
Capital Cases
Dear Potter:
This refers to our several discussions concerning the
possibility of deciding the capital cases on a prospective
basis, where the state statutes are sustained.
Although I have given this some thought since our last
conversation, I have come up with no rationale supported by
authority. There may be some negative or "reverse" support
derived from the judge-made doctrine of non-retroactivity
with respect to some constitutional decisions in criminal
cases. But the logic of this approach is hardly compelling.
Perhaps the best approach is the simple and straightforward one. These are unique cases for ali of the obvious
reasons. Quite apairTrom uniqueness in terms of finality
of the death penalty, the status of the law at the time these
pending penalties were imposed was perhaps uniquely unsettled.
No one - no legislator, judge or juror - could have been
certain how this Court ultimately would come down on the
capital punishment issue. Certainly I did not know, and
indeed I am not sure even today how the Court will go on
each of the five statutory schemes presently before us. I
am not wholly at rest myself as to my position on the
Louisiana statute. Thus, it is at least possible that subtle,
and even unconscious, influences and especially uncertainties
may have pervaded legislative, judicial and jury decisions.
Perhaps no rationalization is needed beyond a recognition
of the stark fact that the carrying out of several hundred
executions, pursuant to validation thereof by this Court,
would cause profound shock waves with unpredictable consequences.
My guess is that state governors, certainly for the most part,
would'exercise executive clemency on a broad scale. But one
cannot be sure that this would be done uniformly, even within
a particular state.
My tentative conclusion, therefore, is that the Court
should simply exercise its ultimate authority and responsibility
even in the absence of precedent. We could hold that the
effect of our decision sustaining the laws in some of these
states is prospective so far as preexisting sentences of death
are concerned. The cases from those states could be remanded
for resentencing under the statutory schemes that we have
stained. Those responsible for the resentencing could then
act with the certainty that the death sentence, if reimposed,
would not be constitutionally flawed.
I agree with you that some consultation is desirable, and
that we should start with John Stevens. I will call you about
this early next week. Meanwhile you may come up with some
more traditional and scholarly rationale.
Sincerely,
Mr. Justice Stewart
lfp/ss
bc: Chris
June 1, 1976
Capital Cases
Dear Potter and John:
Following Potter's precedent I deliver to each of
you herewith a first draft of my assigned portion of the
opinion in Gregg.
This includes, iaregg only, a statement of the facts
(Part I) and a relatively brief summary of the statutory
scheme (Part II). My primary task was to draft the section
of our opinion dealing with the argument that capital punishment is unconstitutional per se. I address that argument in
Part III of the enclosed draft.
It hardly need be said, as Potter emphasized, that since
this is "our" opinion, each of you should feel perfectly free
to suggest such changes of form and substance as you think
may improve our end product.
Sincerely,
Mr. Justice Stewart
Mr. Justice Stevens
lfp/ss
MEM FROH THE COLLECTIONS OF THE HANUSCRIPT'DIVISIONrEIRRARTIWPO
J-Ji:;tice
To: The Chiclf
Yirennan
Mr. 011.3t
Mr.
,Ite
Mr.
sall
Mr.
Yr.
PeJll
prom: Yr.
JUN 7 1976
Circulated:
Recirculated:
No. 74-6257 GREGG v. GEORGIA
MR. JUSTICE STEWART, MR. JUSTICE POWELL and
MR. JUSTICE STEVENS:
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 committin,
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 and on Wednesday morning, 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
REPRODU FROM THE COLLECTIONS OF THE MANUSCRIPT 'DIVISIONr4LIHRARVW"CONGRES
To: The Chief Justice
Mr. Justice Brennan
Mr. Justice Stewart
Mr. Justice White
,..)Pre:-. Just ice Marshall
Mr. Justice Blackmun
Mr. Justice W. :hnqui st
Mr. Justice Stevens
4,6,,ve,t:tre
no-
From: Mr. Justice Powell
Circulated:
Recirculated:
1st DRAFT
SUPREME COURT OF THE UNITED STATM
No. 74-6257
Troy Leon Gregg, Petitioner, On Writ of Certiorari to
v.
the Supreme Court of
State of Georgia.
Georgia,
[June —, 1976]
MR. JUSTICE STEWART, MR. JUSTICE POWELL,
and MR,
JUSTICE STEVENS.
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 and
Moore were 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.
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.
June 20, 1976
Capital Cases
Dear Potter and John:
Here is a draft of a footnote that I have discussed with
Potter that I think would be appropriate to add, possibly at
page 42 of our Gregg , opinion.
This merely records the magnitude of the murder problem
in the United States and the upward tread in recent years.
Apart from being generally comparable to statistical data
we frequently include in footnotes
as to the magnitude
of the Mexican alien problem is the Checkpoint Cases), the
information may well have influenced legislatures in deciding
to reenact capital punishment. At a time when the murder rate
was continuing upward, it was not irrational for legislative
bodies to conclude that the possibility of capital punishment
might deter some murderers.
If this meets with your approval, I will add it as a
footnote to Greg& when the printed copy becomes available.
Sincerely,
Mr. Justice Stewart
Mr. Justice Stevens
lfpAss
Enc.
Suggested footnote to add at page 42
/ In deciding that the death penalty is necessary,
the Georgia legislature may have been influenced in part
by the fact that the overall trend in the number of
murders committed in the nation has been upward for some
time. In 1964, reported murders totaled an estimated 9,250.
During the ensuing decade, the number reported increased
123%, until it totaled approximately 20,600 in 1974. In
1972, the year Furman was announced, the total number of
murders was estimated at 18,550. Despite a factional
decrease in 1975 as compared with 1974, the number of
(almost 10 % )
murder victims increased/in the three years immediately
following Furman to approximately 20,400. See Federal
Bureau of Investigation, Crime .inctheeUnited States, Uniform
Crime Reports, for 1964, 1972, and 1974; 1975 Preliminary
Annual Release, Uniform Crime Reports.
or:5“..e.J‘ stool" fro CLuif
7 I 2.1174
Nos. 75-5706 Proffitt v. Florida; 75-5394 Jurek v. Texas,
74-6257 Gregg v. Georgia
In each of these cases the petitioner has filed
a petition for rehearing and has requested a stay of the
mandate heretofore scheduled to issue on July 27 pending
the disposition of those petitions for rehearing by the
Court.
Since the Court is now in recess, the petitions
cannot be acted upon by the full Court. As petitioners
point out, were the executions in these cases carried
out before the petitions for rehearing could be acted on
by the Court the harm to petitioners would be irreparable.
In addition, the cases would then be moot. On the other
hand, granting a stay of the mandates until the petitions
for rehearing can be acted on will not prejudice the
interests of the respondent States. Accordingly, the
issuance of the mandate in each of these cases is hereby
stayed until further order of this Court.
The decision to grant this stay is not suggestive
of my position on the merits. It reflects, rather, only
my belief that in view of the special nature of these cases
these petitions for rehearing merit consideration by the
full Court when we have reconvened.
Smirentt Q;(ourt of tilt Anittb states
Itzmirtnomt,
2rrg4g
CHAMBERS OF
JUSTICE LEWIS F. POWELL,JR.
July 22, 1976
CAPITAL CASES
MEMORANDUM TO THE CONFERENCE:
enclose herewith a copy of my Order of this
date, issued as Circuit Justice, granting a Stay of
Mandate in the above cases.
My thanks to each of you for your advice and
assistance.
L.F.P., Jr.
LFP/gg
A-31
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No. 74-6257
TROY LEON GREGG,
Petitioner,
v.
STATE OF GEORGIA,
Respondent.
No. 75-5706
CHARLES WILLIAM PROFFITT,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 75-5394
JERRY LANE JUREK,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
ORDER STAYING ISSUANCE OF MANDATE
The petitioners in these cases have filed with the Court
a consolidated petition for rehearing, and also have presented
to me as Circuit Justice for the Fifth Circuit an application
for a stay of the mandate heretofore scheduled to issue on
July 27, the stay to be effective pending the disposition of
the consolidated petition for rehearing. Under controlling
statutes, such petition cannot be acted upon except by the
full Court in regular or special session. If the executions
in these cases were carried out before the petition for rehearing could be acted - on by the Court, the harm to petitioners obviously would be irreparable. In addition, the cases
would then be moot. Nor is there reason to believe that the
granting of a stay, until the petition for rehearing can be
duly considered, will prejudice the interests of the respondent
States. In these circumstances, I conclude that the issuance
of the mandate in each of these cases should be, and hereby is,
stayed until further order of this Court.
The decision to grant this stay is not suggestive
of my position on the merits of the petition.
Dated: July 22, 1976
(signed)
Lewis F. Powell, Jr.,
Circuit Justice, United
States Court of Appeals
for the Fifth Circuit
REPRODU
FROM THE COLLECTIONS OF THE MANUSCRIPT DIVISION, =WRY OF CON
Attprtutt
Qlourt of tit*
ag ireitotatt,
Mt tea
Atzdeo
P. (q. 21Pig
CHAMBERS OF
JUSTICE WILLIAM 1-1. REHNQUIST
June 29, 1976
Re: Gregg v. Georgia, No. 74-6257
Dear Byron:
Will you please add the following statement at the
end of your opinion in this case.
"I 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, 408 U.S. 238 (1972)."
Sincerely,
Mr. Justice White
cc: The Conference