Gregg v. Georgia

In Furman v. Georgia, 408 U.S 238 (1972), the Supreme Court held 5-4 that the death penalty as then imposed by states violated the Eighth Amendment's prohibition of "cruel and unusual punishment." Although the Court was fractured (each justice wrote his own opinion), the central holding was that the death penalty was unconstitutional because it was imposed in a way that was arbitrary and capricious. Justice Potter Stewart summed up the argument this way:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My [fellow justices] have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to death, it is the constitutionally impermissible basis of race. But racial discrimination has not been proved, and I put it to one side. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Although Furman invalidated all then-existing death sentences, it did not signal the end of the death penalty in the United States. State legislatures quickly responded by creating procedures to guide the exercise of jury discretion at sentencing. Most states created a system of bifurcated trials, where the jury would first consider whether the defendant was guilty of the crime and then (in a separate "penalty" phase) consider whether the defendant should be sentenced to death. In an effort to reduce arbirariness at the penalty phase, juries were instructed to consider a specified list of "aggravating" and "mitigating" factors. Four years later, in Gregg v. Georgia, the Court considered the constitutionality of these revised statutes.

As you read Gregg, consider these questions: 

1. Which of the following statements best describes your personal view of the death penalty. I believe that the death penalty is ...
     (A) ... wrong in all circumstances, because it is immoral.
     (B) ... wrong in all circumstances because it is impossible to administer it fairly.
     (C) ... appropriate, but should be used rarely and only for the most egregious cases.
     (D) ... appropriate, and should be used freely to punish murderers and keep communities safe.

2. What are the utilitarian and retributive arguments in favor of the death penalty? What are the utilitarian and retribute arguments against the death penalty?