The Gregg decision revived the American death penalty. It also began a social experiment. Underlying Gregg is an empirical proposition: legal standards would make capital jury decisions more predictable. “Let’s have them be as guided and as rational as they can be,” Stewart told his law clerk Ron Stern in 1976. Yet in five years of archival research and interviews for my book A Wild Justice, I found not a shred of evidence that any of the justices considered social science data. Certainly none is cited in the opinion. The most striking features of the compromise Stewart, Stevens and Powell embraced were the speed with which it was reached, the absence of supporting empirical evidence, and the three men’s unquestioning faith in the power of law and the state and local officials sworn to carry it out.
Forty years later, the data are in on the court’s grand compromise. How one interprets the results may depend on what’s being asked. If the essential question today is whether the death penalty is still being applied arbitrarily, the answer couldn’t be clearer. Arbitrariness is rampant. But, on the occasion of Gregg’s ruby anniversary, let’s ask a more refined question, which more directly honors the case’s peculiar history: Is arbitrariness less of a problem than it was before the Supreme Court got involved in 1972? In other words, has Gregg worked?
The answer is a conclusive, resounding no. Whether one interprets the Furman decision to have been about — individually or collectively — excessive racism, a failure to identify the “worst of the worst” among murderers, the death penalty’s sporadic use, or simple geographical randomness, the “guided discretion” statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse.
Almost all of the justices in Furman noted the low percentage of death-penalty eligible murders that resulted in death sentences. They estimated the rate to be between 15% and 20%. From this statistic, the justices drew different conclusions. Brennan and Marshall cited it as evidence that the death penalty had been rejected by contemporary standards of decency (though the truth is they would have opposed the death penalty regardless). White said an infrequently-used death penalty couldn’t adequately deter crime. His idiosyncratic opinion seemed to invite mandatory laws.