Gregg v. Georgia
The Death Penalty Returns
Murder on the Open Road
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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
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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
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SCOTUS addressed whether death penalty
for murder was…
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Always a violation of 8th and 14th Amendments?
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A violation given Georgia’s statutes?
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Answer: No
Answer: No
No majority opinion; Stewart wrote one
Similar case four years prior in Furman
Backdrop: Furman v. Georgia
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Furman overturned Georgia man’s death sentence
It also left a de facto death penalty moratorium
Split decision
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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
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Comports with public standards of decency
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Comports with “dignity of man”
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After Furman, 35 state legislatures passed death penalty
statutes to get within the decision
Congress approved death penalty for air piracy
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…
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Historical arguments
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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
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Death penalty problematic if handed down
in arbitrary and capricious manner (Furman)
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Revised Ga. statutes, however, guard against
arbitrariness and caprice
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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?
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YES
Ehrlich study
Common sense
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NO WAY TO KNOW
 Justice Stewart
 Charles Black
NO
Subsequent
studies, including
Forst
Justice Marshall
Stewart’s Approach in Gregg
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Stewart says empirical studies are inherently
inconclusive about whether death penalty deters
capital crimes
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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
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Ehrlich compared execution risk to homicide
rate from 1933 to 1969
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Execution risk = % of convicted murderers who
were executed
Raw data showed positive relationship
Multiple regression analysis, controlling for
variables, showed negative relationship
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Ehrlich estimated that every criminal killed led to
eight lives saved via deterrence
More on Regression Analysis
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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
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Passell and Taylor
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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
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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
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
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Forst’s study improved on Ehrlich’s in the
following ways
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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
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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