Gregg v. Georgia The Death Penalty Returns

Murder on the Open Road 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 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 8 th and 14 th Amendments

Supreme Court’s Decision SCOTUS addressed whether death penalty for murder was…  Always a violation of 8 th and 14 th Amendments? Answer: No  A violation given Georgia’s statutes? Answer: No No majority opinion; Stewart wrote one Similar case four years prior in Furman

Backdrop: Furman v. Georgia Furman overturned Georgia man’s death sentence It also left a de facto death penalty moratorium Split decision  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 Comports with public standards of decency  After Furman, 35 state legislatures passed death penalty statutes to get within the decision  Congress approved death penalty for air piracy Comports with “dignity of man”  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…  Historical arguments 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 Death penalty problematic if handed down in arbitrary and capricious manner (Furman)  Revised Ga. statutes, however, guard against arbitrariness and caprice 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? YES Ehrlich study Common sense NO WAY TO KNOW Justice Stewart Charles Black NO Subsequent studies, including Forst Justice Marshall

Stewart’s Approach in Gregg Stewart says empirical studies are inherently inconclusive about whether death penalty deters capital crimes  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 Ehrlich compared execution risk to homicide rate from 1933 to 1969  Execution risk = % of convicted murderers who were executed Raw data showed positive relationship Multiple regression analysis, controlling for variables, showed negative relationship  Ehrlich estimated that every criminal killed led to eight lives saved via deterrence

More on Regression Analysis 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 Passell and Taylor  Appearance of deterrence only arose when using unconventional log regression equation, as opposed to linear equation  Without the years , Ehrlich’s study shows no deterrent effect 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  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 Forst’s study improved on Ehrlich’s in the following ways  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 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