Gregg v. Georgia, 428 US 153 (1976) was the Supreme Court case which established that the death penalty, as long as it is applied appropriately, is constitutional and does not violate the 8th and 14th amendment.

Troy Gregg, after being convicted in the lower Georgia Courts and sentenced to death, appealed his case to the Supreme Court. Troy Gregg did so on the grounds that the death penalty is in fact “cruel and unusual” punishment and therefore direct violation of the 8th and 14th amendment. After oral arguments and deliberation, the Supreme Court decided that Troy Gregg’s challenge against his death sentence was groundless. First the Supreme Court cites the constitutional provision of the 8th amendment that prohibits the arbitrary implication of cruel and unusual punishment, this provision however does not stipulate that the least severe means of punishment must be used. Second, the Supreme Court upheld the bifurcated system, a two-part judgement system established by the Georgia legislature as  a result of Furman v. Georgia. The bifurcated system involves sentencing by an impartial jury and then that sentencing to be vetted by a Georgia Supreme Court Justice to further validate it’s impartiality. This system was established to reduce the risk of any prejudice or capricious sentencing by the jury, thus creating a system allowing for the legal use the death penalty as a sentence.

First Timeline


One of the most significant aspects of Gregg v. Georgia was the basis of Troy Gregg’s appeal to the Supreme Court. His appeal stood on the claim that the death penalty was in actuality a from of cruel and unusual punishment as a sentence for the crimes he had committed. This claim was based on Furman v. Georgia, in which the court ruled that capital punishment was a violation of the eighth and fourteenth amendments in respect to the crimes committed. As a result of this, Georgia established a statutory scheme to overcome Furman v Georgia. This statutory procedure gives the jury discretion to decide whether or not the death penalty is valid punishment for the crime and also gives the Georgia Supreme Court the ability to decide if the administration of the death penalty was administered “in a discriminatory, standardless, or rare fashion”. In Furman v. Georgia, the court’s decision was not simply that the death penalty was unconstitutional per se, yet that the way the death penalty is administered in a “freakish or wanton” nature is unconstitutional. More specifically, the judge informed the jury that it would not be authorized to consider the death penalty unless it is found beyond a reasonable doubt that either that the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, such as the armed robbery of Simmons and Moore, or that the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment, or that the offense of murder was outrageously and wantonly vile, horrible and inhuman, in that it involved the depravity of mind of the defendant.

In 1973 Troy Leon Gregg was convicted of murder and armed robbery. He was held and tried within the state of Georgia. Troy Leon Gregg was found guilty on all counts of the robbery and murder and subsequently sentenced to death. Gregg appealed his case to the Georgia Supreme Court in 1976. The Georgia Supreme Court upheld the death penalty sentences for the murders but reversed the death penalty as a sentence for the robbery charges. Troy Leon Gregg made a final attempt to have his case overturned, or at least remanded, and appealed to the Supreme Court of the United States. The Supreme Court heard the case and gave a ruling July 02, 1976. In the case of Gregg v. Georgia, 428 US 153 (1976), the Supreme Court determined, in a 7-2 decision, that the use of capital punishment was not a violation of the 8th and 14th amendments in the US Constitution under all circumstances due to the statutory systems established after Furman v Georgia such as the bifurcated procedure, that allow for impartial and arbitrary sentencing.

Procedural History

  • Troy Leon Gregg is arrested 1973, and his case will be the first case to be decided underneath Georgia’s new bifurcated system.
  • Gregg is convicted by the lower courts of Georgia in 1973 on all charges (Murder/Armed Robbery), and is sentenced to death using the first set of procedural guidelines of the bifurcated system
  • The case decision is sent to the Georgia Supreme Court for appellate review as the second step of the bifurcated process.
  • The Georgia Supreme Court justices review the lower courts decision and affirm Gregg’s death penalty as it relates to the murders not the robberies
  • Oral Argument – March 31st, 1976
  • Decision – July 2nd, 1976


  • Does Georgia’s new bifurcated system still violate the Eighth and Fourteenth Amendment because it is still creates an inconsistency in applying the death penalty?
  • Is the imposition of the death sentence prohibited under the Eighth and Fourteenth Amendments as “cruel and unusual” punishment per se?

Arguments by Petitioner

Troy Leon Gregg would argue that despite Georgia’s development of a bifurcated death penalty system, Georgia’s application of the death penalty is still inconsistently and arbitrarily decided. Not only that, Gregg would further argue that his capital punishment is the violation of his Eighth and Fourteenth Amendment rights that protect against subjugation to cruel and unusual punishment. Gregg would reference the case Furman v. Georgia 408 US 153 (1972) for his argument, citing the same level inconsistent implementation which the Supreme Court constituted a violation of the Eighth and Fourteenth Amendment.

Arguments by Respondent

Georgia would counter Troy Leon Gregg’s claim and argue that their new bifurcated system creates a “checks and balances” method that allow for the impartial sentencing of the death penalty. The bifurcated process gives the accused to a two-part review system. First, the case is heard and decided by the lower courts where a jury will make the decision for a death penalty sentence. The second and most essential part of the bifurcated process is the mandatory appellate review. This portion requires that the decision made by the lower courts be sent up to the Georgia Supreme Court with the evidence and circumstances being considered once again to determine if the death penalty is an appropriate sentence. In Gregg’s case, the evidence and circumstances validated his capital punishment for the murders. However, the capital punishment as applied to his robbery charges were overturned at the Supreme Court level.


Is the death penalty in Georgia considered unconstitutional due to a violation of the eighth and fourteenth amendments as cruel and unusual punishment? (No)

In a 7-2 decision, the court ruled that the death penalty could be upheld and impartially justified in states that decided to enforce it.

Majority Opinion (Stewart)

Joined by Justices Powell and Stevens, Justice Stewart’s majority opinion declares that the “the punishment of death for the crime of murder does not, under all circumstances, violate the eighth and fourteenth amendments”. He states that “in the 4 years since Furman v. Georgia, at least 35 states have enacted new statutes providing for the death penalty”. Additionally, as a result of the bifurcated judicial process used to convict and sentence Gregg, the death penalty is constitutional because it follows the “carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance” and provides the option for sentence review to prevent any prejudicial or arbitrary factors that may malign a jury’s sentencing, thus fulfilling issues raised in Furman v. Georgia, where the questions of whether or not the death penalty violated the 8th and 14th amendments. To summarize, Stewart concluded that the death penalty is constitutional because of the case-by-case basis that is used, and the statutes in place to prevent any prejudice or arbitrary convictions.

Concurring Opinion (White)

Justice White’s concurring opinion, which was supported in concurrence by Justices Burger, Rehnquist, and Blackmun, simply reiterated the defense of the Georgia statute by which Gregg v. Georgia was upheld. This concurring opinion also pointed out the lack of merit in the Gregg’s appeal, specifically stating the appellant’s claim that “the prosecutor’s decisions in plea bargaining or in declining to charge capital murder are standard less” cannot be made or validated because the statutory scheme to satisfy the Furman decision gives the Supreme court the ability to review the judicial process and decide if capital punishment decided by jury is objective, and fitting for the crime committed.

Dissenting Opinion (Brennan)

Justice Brennan presents the question of morality in his dissenting opinion by stating that “the country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death”. Brennan also claims that the advancement of society and modern day moral values do not justify the death penalty, and continues on to cite the eighth amendment that prohibits cruel and unusual punishment.

Dissenting Opinion (Marshall)

In his own dissenting opinion, Justice Marshall is in agreement with Justice Brennan in that the death penalty is considered cruel and unusual punishment under the eighth amendment because it is excessive, and the popular opinion would reject it as “morally acceptable” if given adequate information on the judgment, reiterating his statement in Furman. 

Full Text Of Opinions

Significance/ Impact

The most dynamic significance behind Gregg v. Georgia is not that it simply established the legality of capital punishment, but it resulted in a statutory guide system to follow that effectively allows for deciding death as a suitable punishment for a crime, and for that decision to be reviewed and deliberated. In Furman v. Georgia, the court ruled that the death penalty was unconstitutional because it violated the eighth and fourteenth amendments as cruel and unusual punishment. It did not rule that the death penalty itself was unconstitutional per se, rather that the procedure and the administration of the death penalty is unconstitutional given the lack of impartial and arbitrary sentencing in respect to the crimes committed. This gave way to a Georgia Statute detailing that a jury must find 1 of 10 mitigating or aggravating circumstances in order to sentence a defendant to death, so that the setnencing is lawful and justifiable. The court also provides a special provision for defendants sentenced to death: “The court is directed to consider ‘the punishment as well as any errors enumerated by way of appeal,’ and to determine:

“(1) Whether the sentence of death was imposed [428 U.S. 153, 167]  under the influence of passion, prejudice, or any other arbitrary factor, and

“(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 27.2534.1 (b), and

“(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” 27-2537 (Supp. 1975).

This has led to a process that satisfies standards set by Furman by creating a system that shows no disregard or lack of standard when imposing the death penalty. Creating a clear and simplified process allowing for judicial review to accurately decide if sentencing a defendant to death is justified in respect to the crime committed. This is later shown in 1987 in McClesky v. Kemp, where an African-American man convicted of armed robbery of a convenience store, and murder of a police office, was sentenced to death on the murder charge, but not robbery. Kemp attempted to prove racially discriminatory sentencing in Georgia by citing the Baldus study that claimed a discrepancy in the use of capital punishment in Georgia based on the respective races of the murder victim, and at times the defendant. Because of the bifurcated system and system of appeals, the sentencing in McClesky v. Kemp was reviewed and found impartial, arbitrary, and just.

Second Timeline

Constitutional Provisions

  • Eighth Amendment
  • Fourteenth Amendment

Important Precedent

Important Subsequent Cases

  • Proffitt v. Florida (1976)
  • Jurek v. Texas (1976)
  • Woodson v. North Carolina (1976)
  • Roberts v. Louisiana (1976) 
  • McCleskey v. Kemp (1987)

Web Resources

  • Chicago-Kent College of Law at Illinois Tech. “Gregg v. Georgia.” Oyez. Accessed March 26, 2017.  Available Here
  • “Death Penalty: Last Week Tonight with John Oliver (HBO)” YouTube, Accessed March 1, 2017.  Available Here
  • “GREGG v. GEORGIA, (1976) No. 74-6257” Findlaw. Accessed March 15, 2017.  Available Here
  • “Gregg v. Georgia  428 U.S. 153 (1976)” Justia, Accessed March 1, 2017.  Available Here
  • Michael H. Reggio, “History of the Death Penalty,” PBS/FRONTLINE, Last modified January 30, 2014.  Available Here

Academic Book, Articles and Law Reviews

  • Leon E. Strine Jr., “DUTY AND THE DEATH PENALTY,” Windner Law Review 21, Issue 1 (2015): 1-26.  Available Here
  • Berry III, William W., “PROCEDURAL PROPORTIONALITY,” George Mason Law Review 22, Issue 2 (2015): 259-296.  Available Here
  • Joseph Blocher, “THE DEATH PENALTY AND THE FIFTH AMENDMENT,” Northwestern Law Review 111, Issue 1 (2016): 1-17.  Available Here
  • Kevin Berry, “The Death Penalty & the Dignity Clauses,” Iowa Law Review 102, Issue 2 (2017): 383-444.  Available Here
  • Winchester, Cody G., “WEIGHING DEATH: IS DEATH PENALTY ELIGIBILITY “ESPECIALLY HEINOUS, CRUEL OR DEPRAVED?,” Arizona Law Review 58, Issue 2 (2016): 511-539.  Available Here


Shawn Kelley

Juan Hernandez

Tasks for Future Contributors

Tasks for the future are to include, but are not limited to; Decision Analysis and Scholarly Commentary/Debates. While not required elements of the project, the inclusion of the sections mentioned above would’ve added greater context to the overall project. In future proceedings, the development and use of the previously mentioned elements will be taken into greater consideration.