In 1976: The Supreme Court ended America's execution moratorium

Fifty years ago today, the United States Supreme Court handed down one of the most consequential rulings in modern criminal justice history, upholding Georgia's revised capital punishment statute and effectively lifting the de facto moratorium on executions that had gripped the country for four years. The 7-to-2 decision in Gregg v. Georgia, 428 U.S. 153, settled — for a generation at least — the question of whether the death penalty itself violated the Constitution.

The United States Supreme Court building, Washington, D.C.

Image: Duncan Lock (Dflock) (CC BY-SA)

The case arose from the conviction of Troy Leon Gregg, who had been found guilty in Georgia on two counts of murder and one count of armed robbery. After a separate sentencing phase, the trial jury imposed the death penalty on the murder convictions. Georgia's Supreme Court, conducting the mandatory review required by the state's revised statute, affirmed the death sentences for murder but vacated the death sentence for robbery alone, concluding it was disproportionate under state law. Gregg challenged what remained, arguing to the Supreme Court that imposing death for murder violated the Eighth and Fourteenth Amendments.

To understand what the Court was deciding, you have to go back to 1972 and Furman v. Georgia, 408 U.S. 238, where a divided 5-to-4 majority had effectively invalidated every capital punishment statute in the country. Furman did not declare the death penalty unconstitutional in all circumstances; it held that the manner in which death sentences were being imposed — left entirely to the unfettered discretion of individual juries, with no guiding standards — amounted to cruel and unusual punishment. Justice Potter Stewart's concurrence captured the problem in terms that would be quoted for decades: the existing statutes permitted "the wanton and the freakish" imposition of death sentences (Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring)), leaving those who received the death penalty as victims of what Stewart described as a system of organized randomness. Death rows across the country froze overnight.

State legislatures responded with urgency. Approximately thirty-five states enacted new capital punishment statutes in the four years after Furman, attempting to craft frameworks that would pass constitutional muster. Georgia's approach was among the most carefully structured: a bifurcated trial separating the guilt determination from the sentencing decision, a list of specific statutory aggravating circumstances the prosecution had to prove beyond a reasonable doubt before death could even be considered, and mandatory review by the state Supreme Court of every death sentence to check for arbitrariness, passion, or disproportionality.

Writing for the plurality, Justice Stewart — joined by Justices Lewis F. Powell Jr. and William H. Rehnquist — concluded that the death penalty was not categorically prohibited by the Constitution. The Eighth Amendment's meaning, the Court had established, evolved with "the evolving standards of decency that mark the progress of a maturing society." Looking at the post-Furman landscape — approximately thirty-five new statutes, continued public support — the plurality saw no evidence that American society had repudiated capital punishment for murder. The Court recognized two penological purposes that supported it: retribution, as a legitimate moral expression of society's condemnation of the most serious crimes, and deterrence, which, while not conclusively demonstrated, remained plausible enough to respect the legislature's judgment.

Georgia's revised framework, the plurality found, answered Furman's core objection. Enumerated aggravating circumstances gave juries meaningful guidance rather than unchecked discretion. The mandatory appellate review provided a check against arbitrary outcomes. The two-stage trial allowed a genuinely individualized determination at sentencing — not just a verdict on guilt, but a moral judgment about whether this particular defendant, with these circumstances, should die.

Justice Potter Stewart, 1976 official Supreme Court portrait.

Justices William Brennan Jr. and Thurgood Marshall each wrote separately in dissent. Brennan argued that the death penalty was inherently cruel and unusual: so infrequently imposed that it lost any deterrent value, so uniquely cruel as to be degrading to society as a whole, and so irreversible that no error could ever be corrected. Marshall pressed harder on the empirical record, contending that the available evidence did not support deterrence and that capital punishment fell disproportionately on poor and minority defendants in a way that no procedural reform had ever cured. Both justices maintained those positions for the rest of their careers.

Announced the same day were four companion rulings. The Court upheld Florida's capital punishment statute in Proffitt v. Florida and Texas's in Jurek v. Texas, while striking down mandatory death penalty schemes in Woodson v. North Carolina and Roberts v. Louisiana — laws that imposed automatic death sentences for certain categories of murder without allowing any individualized consideration of mitigating circumstances. Guided discretion was constitutionally permissible. Mandatory death was not.

The decision cleared the legal path for executions to resume nationwide. In the years following Gregg, approximately thirty-seven states enacted new capital punishment laws consistent with the framework the Court had approved. The structure the justices built fifty years ago today — mandatory aggravating factors, individualized sentencing, and proportionality review — remains the constitutional foundation of American capital punishment, even as the debate over its fairness, its efficacy, and its moral legitimacy continues to divide the country.

Today in True Crime by CaseBond — 2026-07-02