Three Supreme Court Justices Who Supported Gregg Later Rejected the Death Penalty — Why? - Davis Vanguard
WASHINGTON — Fifty years after the U.S. Supreme Court upheld the constitutionality of the “modern death penalty” in Gregg v. Georgia, three justices who supported the landmark ruling later rejected capital punishment, concluding that the system they had helped preserve had failed to eliminate arbitrariness, racial disparities and the risk of fatal error. Four justices ultimately expressed opposition to the death penalty after initially supporting its constitutionality or application, raising a fundamental question about the experiment launched by the court in 1976 and whether the safeguards envisioned in Gregg ever worked as intended. In an opinion for PennLive/The Patriot-News, retired defense attorney and current chair of Pennsylvanians Against the Death Penalty Marshall Dayan asks: Has the death penalty, as established by Gregg, accomplished its goals? Gregg v. Georgia was part of a series of five cases called the “Death Penalty Cases.” After being found guilty of armed robbery and murder, Troy Leon Gregg received a death sentence. Gregg challenged his sentence all the way to the Supreme Court, arguing that the capital sentence infringed upon his 14th and Eighth Amendment rights against cruel and unusual punishment. In a 7-2 decision, the court found that the “punishment of death” did not violate the Eighth and 14th amendments “under all circumstances,” but only under “extreme criminal [circumstances].” Georgia’s death penalty at the time had recently narrowed the “class of potential capital cases” through an “aggravating circumstances” requirement. These circumstances would be actions that go beyond those of a “simple murder” that would warrant a death sentence. Dayan gives the examples of killing a police officer or committing murder in the midst of another felony crime. Along with the requirement, the statute included other safeguards, such as automatic appellate review of proportionality to past cases ending with death sentences. Given the limitations imposed by the statute, the court ultimately found Gregg’s case to fall under the “aggravating circumstances” and a “judicious and careful” application of the death penalty. The Gregg decision was particularly significant because just four years earlier, the court had “struck down 539 death sentences across the country.” The 1972 Furman v. Georgia decision saw the court rule against the death penalty for violating the Eighth and 14th amendments; however, it specifically ruled based on the punishment’s “arbitrary” and/or “racially discriminatory” application. Five decades later, Justices Harry Blackmun, Lewis Powell, John Paul Stevens and Stephen Breyer have concluded that the “death penalty experiment” has failed — Blackmun, Powell and Stevens having been three of the seven justices who ruled in favor of Gregg in 1976. Their reversals underscore a central question surrounding the modern death penalty: whether the constitutional safeguards that allowed capital punishment to resume after Furman succeeded in preventing the same arbitrary and discriminatory outcomes that had caused the court to intervene in the first place. Dayan reviews and dissects the changing sentiment and finds two main reasons for the failure of Gregg: discriminatory applications are still apparent, and appellate safeguards have been abandoned across federal and state courts alike. Studies by the Santa Clara Law Review found that the murder of a white person is three to four times as likely to result in capital punishment as the murder of a person of color. Despite consistent efforts to remove racial bias from the justice system, even with safeguards like the ones outlined in Gregg, Dayan highlights how arbitrary sentencing still exists. However, what seems to be more concerning to Dayan is the abandonment of safeguards in general. Eight years after Gregg, the court ruled in favor of a California death penalty statute that did not require a state judicial review of proportionality — even though that was one of the reasons it upheld Gregg. Many states followed California in removing proportionality reviews soon after the decision. Over the course of 50 years, the list of aggravating circumstances has increased. Claiming that, given a murder, prosecutors could find some sort of aggravating circumstance, Dayan points to the number of circumstances state death penalty statutes have: California has 22, Pennsylvania has 18, Florida has 15, and Georgia’s has gone from 10 in Gregg to 12 in the present day. Prosecutors expanding the lists have reportedly “depriv[ed the] statutes of the constitutional narrowing function that Gregg presumed necessary.” The consequences of those systemic failures extend beyond questions of proportionality and racial disparities. More than 200 death row inmates have been exonerated since 1974. Dayan writes that the American justice system is flawed and there have been times when an innocent person was executed upon retrospective review. For Blackmun, who had voted to uphold the modern death penalty in Gregg, the accumulated evidence ultimately led him to conclude that capital punishment could not be administered within the constitutional constraints the court had envisioned. “Twenty years have passed since this Court declared that the death penalty must be imposed fairly … or not at all,” Justice Blackmun wrote in Callins v. Collins (1994). “[T]he death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.” Blackmun’s conclusion, coming nearly two decades after he joined the Gregg majority, encapsulated the broader concern raised by Dayan five decades after the Supreme Court allowed executions to resume: The safeguards designed to distinguish the modern death penalty from the arbitrary system rejected in Furman have themselves been weakened or abandoned, while racial disparities, wrongful convictions and the possibility of irreversible error remain. To comment please go to one of these social media platforms: Facebook: https://www.facebook.com/DavisVanguard LinkedIn: https://www.linkedin.com/company/peoples-vanguard-of-davis-inc/ Instagram: https://www.instagram.com/davisvanguard/ X: https://x.com/davisvanguard Bluesky: https://bsky.app/profile/vanguardnewsgroup.bsky.social Subscribe to the Vanguard News letters. 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