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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

—Eighth Amendment of the United States Constitution, ratified 1791

On April 11, 1967, thirty-seven-year-old Aaron Mitchell tried to cheat California's executioner out of his life. Mitchell slashed his own left arm with a razor blade smuggled into his cell on death row, digging deep into the flesh just below his elbow, in an attempt to avoid execution in San Quentin's gas chamber the following day. He failed.

Prison medical personnel bound up his wound, and the next day guards strapped Mitchell, bandage and all, into the metal chair where he would die breathing fumes from hydrogen cyanide. He was the first prisoner to be executed in California in four years, a prospect on which he wryly remarked toward the end of his days on death row. “I kind of hate having that distinction,” he said.1 Aaron Mitchell had another distinction coming (and he would have really hated this one): he became the last prisoner to be executed in California for twenty-five years. He was also the next-to-last inmate in the entire country to be executed for a ten-year period following his death.

Colorado's Luis Monge had the dubious honor of being the last prisoner put to death before a decade-long national moratorium began. Condemned for murdering his pregnant wife and three of their children, Monge died in the Colorado State Penitentiary's gas chamber on June 2, 1967. Ironically, Wayne Patterson, the warden who pulled the lever releasing the lethal gas, was an opponent of capital punishment. “It was a terrible experience,” Paterson said, “but if you want to be the warden, you do the warden's duty.”2

The moratorium on capital punishment was shaped by many forces, but none as powerful as a legal campaign that had its roots in a Georgia murder. That murder took place in Savannah, just seventy days after Monge was executed.

As 1967's calendar flipped to August 11, the day before his thirtieth birthday, William Micke came home just after midnight from the Tiffany Lounge, where he moonlighted as a waiter. Micke's fulltime career was in the U.S. Coast Guard; he was a Machinist's Mate 2nd Class, stationed at the nearby Coast Guard Air Station. He worked the two jobs to support ten children: six by his wife's first marriage, three by his own former marriage, and one child they had together. The baby was fourteen months old.

The Mickes, who were white, lived in a blue-collar area just blocks from an invisible neighborhood boundary; on the other side the residents were black and poorer. There was little racial tension, but there was a pattern of larceny—those who had less preyed upon those who had more.

Around 2:00 a.m., William Micke was in bed but still awake when he heard noises coming from the kitchen. His wife's eleven-year-old, Jimmy, had a habit of sleepwalking, and Micke assumed the boy was at it again. He got up and headed to the kitchen. When he got there, he found an intruder who immediately fled. But in the process, a pistol the man was carrying discharged, and a .22 caliber bullet hit Micke in the chest.

How the gun was fired would later become a bone of contention, but that was of little consequence to William Micke—he died on his kitchen floor before help arrived.3

Sergeant G. W. Spivey of the Savannah Police Department was the first officer on the scene. He organized a neighborhood manhunt, which uncovered muddy footprints leading across the invisible border to nearby Sherman Street. There, hiding in a crawl space under his uncle's house, officers found twenty-four-year-old William Furman. He had a .22 caliber handgun in his pocket.

Furman was black, a sixth-grade dropout, and had absolutely no talent for burglary. He'd been caught and convicted of that crime four times. Released on parole several months before, he was living with his mother and was a regular at Ruby's Two Spot, a neighborhood bar. Three weeks earlier, he had bought the pistol on the street for twenty-five dollars. “It was a good buy,” he told police.

Furman's statement to police that night, which he refused to sign, would come into question later. In it, according to detectives, he admitted to firing one shot back toward his pursuer as he fled the house, assuming the homeowner was armed. “He came after me. I knew he was going to shoot,” Furman was quoted as saying.4 At the Micke home, Sergeant Spivey and crime-scene investigators found a hole near the latch of a screen door on the porch and signs that the intruder had gone through a kitchen window from the porch, climbing over a washing machine to gain entry. They also gathered fingerprints that, together with ballistics evidence matching Furman's gun to the bullet in William Micke's chest, would help prosecutors build a solid case against Furman. They moved quickly.

Furman was charged with felony murder. It was a capital offense for which, under Georgia law, intent to kill was not a factor: killing was murder, whether by accident or design, when it occurred in the commission of a felony. William Henry Furman would go on trial for his life.

Furman's family could not afford to hire an attorney, but he was fortunate in the court appointment of B. Clarence Mayfield to defend him. “Bobby” Mayfield was one of the few black attorneys in town, active in the struggle for civil rights, and a fierce opponent of the death penalty. Mayfield empathized with the victim's family—he was himself the father of nine children—but he would use every legal tool to save William Furman's life.5 He knew the evidence was stacked against his client, and he knew the racial realities in Savannah.

“It was black on white. A black man killed a white man. That did it,” Mayfield would say later. “It wouldn't have been so with black on black, or white on black, or white on white. I could almost guarantee you that in any of these combinations the charge would be less than murder. No capital crime. No electrocution.”6

Whatever the quality of justice in Savannah, it was swift. The entire trial took place in one day, on September 20, 1968. Starting at 10:00 a.m., a panel of sixty in the jury pool was whittled down to a twelve-man jury, followed by the presentation of evidence. Closing statements by both sides were delivered after lunch, Judge Dunbar Harrison instructed the jury by midafternoon, and a verdict was returned at 5:00 p.m.

The prosecution presented nine witnesses in quick succession; the defense, only one—William Furman. Rather than have him be subject to cross-examination, Mayfield succeeded in having the defendant present an “unsworn statement” to the jury. In it, Furman testified that the shooting had been a fluke, that he had tripped over the washing machine's power cord while fleeing, and that the gun had discharged by accident:

They got me charged with murder and I admit going to these folks’ home and they did caught me in there and I was coming back out, backing up, and there was a wire down there on the floor. I was coming out backwards and fell back and didn't intend to kill nobody. I didn't know they was behind the door. The gun went off and I didn't know nothing about no murder until they arrested me, and when the gun went off I was down on the floor and I got up and ran. That's all to it.7

The jury, eleven whites and one black, would have to weigh this account against the testimony of police officers about Furman's statement to them on the night of the crime, when he allegedly admitted to firing back at Micke. But the judge's instructions held out little hope for Furman; they made it clear that Micke's death during the burglary, not Furman's intent, was the issue. “If you find that such killing was the natural, reasonable and probable consequence of such breaking and entering,” Judge Harrison told the jurors, “then I instruct you that under such circumstances you would be authorized to convict the defendant of murder…whether the defendant intended to kill the deceased or not.”

Harrison told the jurors that if they were to find Furman guilty, they had two options. If they recommended mercy, the defendant would be imprisoned for life. If they made no recommendation, he would be sentenced to death. The jury began its deliberations at 3:35 p.m., but the foreman sent back a telling question just forty-five minutes later. He said the members wanted to know if the judge, rather than the jury, could decide on punishment in the event of a guilty verdict. The jurors clearly wanted this cup to pass, but Harrison would have none of it. “No, sir,” he told the foreman. “I have given you the forms of the verdicts. It's up to the jury to determine.”

An hour later, the jury returned a guilty verdict with no recommendation for mercy. Judge Harrison delivered the sentence, first to a crowded courtroom and then in a signed judgment: “It is therefore considered, ordered and adjudged that the said William Henry Furman be delivered to the Director of Corrections for electrocution at such penal institution as may be designated by the Director.” The jurors went home in time for dinner.

The verdict was exactly what Bobby Mayfield had feared. He immediately filed a motion for a new trial, citing alleged Miranda violations the night of Furman's arrest and protesting the dismissal of a potential juror who opposed the death penalty. That motion was denied, and Mayfield then organized a full-scale appeal to Georgia's Supreme Court. For months, Mayfield had been working for nothing; the $150 fee allowed by his court appointment had long ago been spent.

The Georgia Supreme Court saw no merit in any of Mayfield's arguments. It found no Miranda violations; it ruled that the juror's exclusion was permissible under U.S. Supreme Court guidelines (Witherspoon v. Illinois), that fingerprint and ballistic evidence was properly obtained, and that Georgia's death-penalty statute was not cruel and unusual punishment. The state court's concluding sentence left no room for hope: “Having considered every enumeration of error argued by counsel in his brief and finding no reversible error, the judgment is affirmed.”8

Bobby Mayfield had done his best; now it was time to call in the cavalry. A legal team mounted by the NAACP Legal Defense Fund (LDF) had both the resources and the talent to take Furman's case to the court of last resort. The LDF team included Jack Greenberg, who had helped argue the landmark civil rights case Brown v. Board of Education before the Supreme Court, and Anthony G. (“Tony”) Amsterdam, who at just thirty-six years of age was considered one of the country's premiere courtroom advocates. The LDF team began focusing its appeal on the issue of cruel and unusual punishment.

Unknown to the lawyers on either side of the Furman case, the issue of cruel and unusual punishment had been simmering within the marble confines of the Supreme Court for several years. The flame had been lit by two men no longer in the building, Justice Arthur Goldberg and his then twenty-four-year-old clerk, Alan Dershowitz.

In the summer of 1963, in Goldberg's first year on the Court, he was faced with six petitions for hearings in death-penalty cases. None of the cases specifically raised the Eighth Amendment issue of cruel and unusual punishment, but Goldberg felt that a test of that issue was due. He assigned Dershowitz, a Brooklyn-born legal prodigy who had been first in his class at Yale Law School, to research the issue. The result was a memorandum, polished by Goldberg and presented to his colleagues on the Court, that urged the abolition of the death penalty on Eighth Amendment grounds.

The memorandum did not accomplish its immediate purpose—Goldberg was not able to garner the four votes necessary to grant a hearing in any of the cases that had been petitioned—but it did stir discussion. Goldberg noted that public opinion might still favor capital punishment, but that “standards of decency” were evolving, and the justices should lead the way. “This Court has traditionally guided rather than followed public opinion,” he wrote, “in the process of articulating and establishing progressively civilized standards of decency.”9

Also behind the scenes, the justices were actually shopping for cases to decide “once and for all,” as Justice Douglas put it, whether state laws and practices concerning capital punishment violated the Eighth Amendment. The justices felt a need for clarity after a muddled 1971 decision in a California due-process case (McGautha v. California), and they appointed William Brennan and Potter Stewart as a two-man committee to cherry-pick promising appeals. They selected four cases, of which Furman would become the keystone.10 Goldberg and Dershowitz were both gone from the Court for several years by the time the LDF argued cruel and unusual punishment in its briefs for the Furman case. Goldberg had acceded to Lyndon Johnson's persuasion and accepted the post of ambassador to the United Nations in 1965; Dershowitz had gone to Boston to begin a career on the Harvard Law School faculty that has flourished for almost half a century. But they had planted a seed that Furman's defense team would nourish.

The LDF lawyers built their constitutional case against the death penalty not only around the Eighth Amendment claim of “cruel and unusual” but also on the Fourteenth Amendment's guarantee of equal protection, tracing that guarantee all the way back to its legislative roots.

In introducing the proposed constitutional amendment on the floor of the Senate on May 23, 1866, Senator Jacob Howard of Michigan told his colleagues: “It does away with the injustice of subjecting one caste of persons to a code not applicable to another. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged.”11

The LDF briefs claimed that, beyond issues of race, defendants were deprived of equal protection by the way jurors were selected, how those jurors made decisions, and the instructions judges gave to jurors.

On the morning of January 17, 1972, Tony Amsterdam stepped to the lectern before the nine justices of the Supreme Court. He would argue two of the cases accepted by the Court to address challenges to the death penalty: that of a horrific killer in California named Ernest James Aikens Jr. and that of William Furman. Furman's case was more palatable in that an accident was a possible explanation for William Micke's death, and because Furman had been diagnosed with a “mental deficiency” after his trial. The Aikens case—that of a man who was convicted of raping two women and then stabbing them to death—had no redeeming qualities.

Amsterdam made the case that the punishment was at issue, not the crimes. Concerning the Eighth Amendment, he argued that the death penalty was cruel under evolving social standards; it was unusual, he said, because it was now being applied with less frequency. (There was an obvious irony in that argument, given that LDF legal efforts were largely responsible for the drop in executions.)

The death penalty, he told the justices, was also being applied unevenly—that is, unequally—and all defendants, regardless of their crime, race, or social status, should be protected from it by the Fourteenth Amendment. Amsterdam presented well-organized, compelling arguments. Justice Byron White, notoriously a tough audience, would later tell his clerks it was possibly the best oral presentation he had ever heard.12

The Aikens case would disappear from the justices’ radar; the California Supreme Court overturned Aikens's death sentence, making his case before the U.S. Supreme Court moot. But the issues in Furman would present a major stress test to the Court's proud tradition of collegiality.

At the Conference held four days after the arguments, a consensus on a decision began to coalesce, but it came from widely diverse points on the legal compass. Chief Justice Warren Burger, along with Justices Lewis Powell, Harry Blackmun, and William Rehnquist, voted to affirm Furman's sentence, though they were not in lockstep on their reasons. On the other side, Justice Douglas told his colleagues that the death penalty “is used primarily against minority groups…. If it is discriminatory in practice, it is ‘unusual’ under the Eighth Amendment.”13

Justice Brennan used a broader brush, citing Eighth Amendment arguments made in the Goldberg/Dershowitz memorandum. “The death penalty is a highly suspect penalty,” he told the Conference. “Even if the death penalty were restricted to a select form of murder, it would fail.”14

Justices Byron White and Potter Stewart also voted to reverse Furman's sentence.

Thurgood Marshall, who had helped birth the LDF's campaign against the death penalty before he joined the Supreme Court, did no gloating in the Conference. “The Eighth Amendment,” he said simply, “was intended to be considered in light of contemporary history. I reverse.”15

If the justices had set a course at that January Conference, their nine oars were not being wielded in synch. Despite several more meetings, telephone consultations, and the distribution of numerous drafts, no two justices could agree on the rationale of an opinion. The result was a brief, one-page unsigned opinion setting aside Furman's death sentence, followed by nine separate opinions explaining why the decision was right in the view of five of the justices and why it was viewed as wrong by the four others. Overall, the decision totaled more than 230 pages, almost eighty thousand words—one of the longest decisions in Supreme Court history.

Given the disarray of the opinions, it was left to Chief Justice Burger, who had voted to affirm Furman's death sentence (and death sentences in two other consolidated cases) to announce the decision that would set it aside: “The Court holds that the imposition and carrying out of the death penalty in these cases constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”16

The majority of justices agreed that the death penalty was “cruel and unusual punishment,” but each made his own argument. Justice Stewart, citing the arbitrary nature of capital punishment, made a striking comparison: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”17 Justice Blackmun, in dissent, was not to be outdone in eloquence, admitting to “an excruciating agony of the spirit.” He wrote, “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence for the death penalty…and of moral judgment exercised by finite minds.”18 But Blackmun felt that the Court had overstepped constitutional boundaries. “It has sought and achieved an end,” he said.19

The Stanford University scholar Robert Weisberg called Furman “a badly orchestrated opera, with nine characters taking turns to offer their own arias.”20 Edward Lazarus, whose academic knowledge was enriched by firsthand experience as a clerk at the court, was more scathing: “For five justices to issue one of the most far-reaching constitutional rulings in the Court's history without even agreeing among themselves on a legal rationale,” he wrote, “betrayed the very rule of law they claimed to be upholding.”21

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The Furman decision was hugely controversial. Although the justices failed to come together on any single rationale, opponents took heart that the country's highest Court was finally casting doubt on capital punishment and generating some hope that a decision to do away with the practice forever might be within reach. After all, the Court historically moves slowly on many issues, and this was, in their view, at least a step in the right direction.

Proponents of capital punishment, particularly legislators in those states that permitted the death penalty, saw the decision quite differently. For one, the decision was razor thin, 5–4. Only two Justices—William Brennan and Thurgood Marshall—rejected the death penalty outright. A third, William O. Douglas, was close, finding the practice inherently discriminatory. But the two other justices voting to set aside Furman's death sentence, Potter Stewart and Byron White, made it clear they could embrace state death-penalty laws if procedures could be put in place to make death sentences less arbitrary, if greater attention were paid to the circumstances of the specific crime and the character of the individual defendant.

On November 12, 1975, there was another development that further encouraged death-penalty proponents. One of the justices sharply critical of capital punishment, seventy-seven-year-old William O. Douglas, retired from the Court. Douglas, who had become one of the most liberal justices ever to sit on the Supreme Court, had suffered a debilitating stroke a year earlier. President Ford named John Paul Stevens to succeed him. Stevens was highly regarded for his lucid, scholarly opinions as a judge on the U.S. Seventh Circuit of Appeals, and he was easily confirmed on a 98–0 vote in the Senate. Stevens, it was believed, would surely be less doctrinaire than Douglas and more receptive to the will of the popularly elected branches of government. As it turned out, he was.

The Furman decision would, however, stay the executioner's hand for years. Lawyers and state legislators spent the time parsing the individual opinions to divine a workable path for reintroducing capital punishment. By 1976, thirty-five states had drafted new death-penalty laws designed to satisfy the high Court's concerns. Congress had also enacted a federal law allowing the death penalty for a specific crime: airline hijackings resulting in death.22 The time was ripe for reconsideration, and a number of appropriate cases would soon be on the Court's doorstep. Among them was Gregg v. Georgia.

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Troy Leon Gregg had been born into a family ravaged by alcoholism and violence. His great-grandfather had slit his wife's throat; his grandmother and three cousins were shot to death by his uncle. Gregg, by the time of the crime that would write his name into legal history, was twenty years old and rootless. He had been working a variety of construction and landscaping jobs, staying on the move. “I was a wanderer,” he said.23

On November 21, 1973, Gregg and a sixteen-year-old companion, Sam Allen, hitched a ride on the Florida Turnpike from “Tex” Moore and Fred Simmons. Gregg and Allen were broke; they had only eight dollars between them, but hoped to get to North Carolina. Simmons and Moore appeared to be good ole boys with money to spend and beer to drink. They did a bit of both on their journey north. Their car broke down about 240 miles north of Miami, but with the help of a Florida Highway patrolman, they got to a used-car dealer and purchased a 1960 red-and-white Pontiac, paying cash. The trip resumed with Gregg doing much of the driving while Simmons and Moore did much of the drinking.

At the intersection of I-10 and I-75 in north Florida, this motley quartet picked up yet another hitchhiker, identified as Dennis Weaver, on his way to Atlanta. The five of them continued the trip until about 11:00 p.m., when Weaver was dropped off in the Druid Hills section of Atlanta. In a statement to police, Gregg's young companion, Sam Allen, recounted what happened next.24

Simmons and Moore wanted to stop at a rest stop to relieve themselves and did so at the intersection of I-85 and Highway 20 in Gwinnett County, Georgia. Gregg told Allen to get out of the car, saying “We're going to rob them.” As Simmons and Moore returned from the gas station rest room, said Allen, “Gregg lay up on the car with a gun in his hand to get good aim and fired three shots…. One of the men fell, the other staggered.” Gregg then circled around the back of the car and approached the two men, both lying in a drainage ditch. Gregg placed the gun to the head of one of the men and pulled the trigger. He then went quickly to the other man, placed the gun at his head, and again pulled the trigger. A subsequent crime-lab report showed that Simmons had been killed by a shot to the right corner of the right eye, in the temple region, and that Moore had been shot once on the right side of his face and again in the back of his head. Gregg then took their money and whatever else they had in their pockets, according to Allen, then told him to get in the car. They drove away.

Two days later, the other hitchhiker, Dennis Weaver, went to a Druid Hills restaurant to have breakfast and read about the double homicide on the front page of the Atlanta Constitution. Weaver called the police and told them about his contact with Gregg and Allen, and that he believed they were headed toward Asheville, North Carolina. Law enforcement officials in Gwinnett County notified their counterparts in Asheville, who arrested Gregg and Allen the next day, still driving the 1960 red-and-white Pontiac. They found $107 in Gregg's pocket and a .25 caliber automatic pistol. Ballistics tests established that it was the same gun used in the shooting deaths of Simmons and Moore.

Gregg initially confirmed Allen's recollection of events to police, telling a Gwinnett County detective, “By God, I wanted them dead.”25 Later, however, he changed his story and claimed that the shootings were in self-defense. Gregg had hoped that Allen, only sixteen years old, would back up his self-defense account. He even wrote a prompting letter to Allen, asserting they both had “feared for their lives”; he asked Allen to memorize the letter and then destroy it. Allen did neither, instead handing the letter to authorities. It would be used as evidence in Gregg's murder trial.

The trial in Gwinnett Superior Court lasted less than a week. The prosecutors had Gregg's admission, the murder weapon, and the testimony of Gregg's fellow hitchhiker, Sam Allen. The jury deliberated less than an hour before returning a verdict: guilty of first-degree murder. Right after the verdict, the judge convened a hearing on sentencing as required by Georgia's new death-penalty statute.

The prosecutor painted Gregg as malicious and without remorse. Defense Attorney G. Hughel Harrison urged mercy and warned against an irrevocable mistake. Jurors, he said, would not want to look back after an execution and say, “Well, maybe I was a little bit mistaken.”26 The judge carefully charged the jury about how they must consider both aggravating and mitigating circumstances, as required by the new statutes, and the twelve members returned to the jury room. This time, their deliberations took nearly four hours. They returned to the courtroom with a verdict of death.

Under the new Georgia law, death sentences were automatically reviewed by the state supreme court, which, on October 17, 1974, affirmed Gregg's conviction and death sentence. In denying his appeal, the Georgia court specifically rejected Gregg's claim that his various confessions should not have been allowed into evidence because fourteen hours had expired between the time he was warned of his Miranda rights and the time he made his final incriminating statement.

Internal memoranda of the U.S. Supreme Court reveal that the Court was actively searching for death-penalty cases that could be used to address the myriad questions left unanswered by the Court's decision in Furman v. Georgia, and to resolve the constitutionality of the newly enacted death statutes.

“There are now thirty-four states and the federal government which have enacted post-Furman capital punishment statutes,” wrote James B. Ginty, the Court's senior counsel, in a memorandum to the justices designed to help them select the cases to be heard. “It is possible to identify four basic approaches taken by state legislatures in enacting these statutes—‘aggravating only’; ‘aggravating-mitigating’; ‘quasi-mandatory aggravating-mitigating’; and ‘mandatory.’”27 The Court would have to parse with care.

Gregg's case was on that list, with a recommendation that it not be accepted because the Miranda issue might somehow muddy the waters or even prevent resolution of the death-penalty questions. In the end, however, Gregg v. Georgia was among five cases the Court accepted for review, the others involving death-penalty laws in North Carolina, Florida, Louisiana, and Texas.28 Gregg, however, would become the lead case.

Courts do not write legislation; legislatures do. But the Supreme Court seized these five cases to at least provide a blueprint for the states on how to write a death-penalty statute that would comply with the Court's view of the U.S. Constitution. The stakes in this new round of cases could not have been higher—literally life or death. Not just one life or death, but hundreds. Attorneys for the condemned inmates would be asking the Supreme Court to go beyond the Furman case and declare the death penalty cruel and unusual, and thus unconstitutional, once and for all.

The death penalty is, of course, a political issue as much as it is a constitutional one, and the Ford administration supported capital punishment. The Justice Department also had a horse in this race: the validity of the Federal Air Piracy statute was on the line along with the five state death-penalty statutes. This allowed the Ford administration to dispatch its top courtroom lawyer, Solicitor General Robert Bork, to argue the government's case as a “friend of the Court.”

Bork was a scholar with conservative views and a compelling courtroom manner. His own nomination to the Supreme Court by Ronald Reagan would be shot down in the Senate ten years later, but on the morning of March 31, 1976, Bork had the full attention of the Court. He argued that capital punishment served society's legitimate interest in deterrence, retribution, and its expression of moral outrage. He pressed the point that the death penalty could not be unconstitutional because “the men who framed the Eighth Amendment [prohibiting cruel and unusual punishment] framed the procedures which must be followed in inflicting it.”29

There are, however, some forms of punishment that were permissible at the time the Bill of Rights was adopted that would be unacceptable today, leading Justice Potter Stewart to ask, “What if a state said for the most heinous kind of first-degree murders we are going to inflict breaking a man on the wheel and then disemboweling him while he is still alive and then burning him up. What would you say to that?” Bork responded:

I would say that that practice is so out of step with modern morality and modern jurisprudence that the state cannot return to it. That kind of torture was precisely what the framers thought they were outlawing when they wrote the cruel and unusual punishment clause.30

Bork also addressed the claims by Justice Stewart and Byron White in Furman that the death penalty was being applied in a “wanton and freakish” manner:

Counsel's real complaint is not that anybody is freakishly convicted and executed but, rather, that some murderers are freakishly spared and given life imprisonment. In other words, the fault in the system which makes it unconstitutional to inflict the death penalty is that it errs, if it errs at all, on the side of mercy and the side of safety, and that is what we are told makes it unconstitutional.31

Bork's passion for his argument was apparent. Scholar and historian Stuart Banner suggests that passion was deeply rooted, writing that Bork “viewed opposition to capital punishment as a symptom of moral decay, and…was motivated even more by a visceral disgust for the constitutional philosophy of Justices Brennan and Marshall.”32

Given the new composition of the Court—with Justice Douglas gone and replaced by the decidedly more moderate Justice Stevens—and the closeness of the vote in Furman (5–4), it was highly unlikely that the Court would throw out the death penalty altogether. But it did use the five cases before it to refine its mandate in Furman, that a death sentence be based on objective criteria and on the individualized consideration of both the crime and the criminal who committed it.

The death penalty statutes in North Carolina and Louisiana were rejected largely because they permitted mandatory death sentences in some cases, leaving the jury (or judge) no discretion to reduce the sentence. The Texas, Florida, and Georgia statutes were upheld, however, with the Court pointedly noting in the Gregg decision how the Georgia statute had satisfied the concerns the justices had raised in Furman.

As with the Furman decision, again there was no majority opinion. But Justice Stewart announced the judgment of the Court and the rationale of the Court in upholding Gregg's death sentence:

The new Georgia sentencing procedures…focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way, the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.33

Stewart also observed that any death penalty in Georgia was subject to automatic review in the state supreme court, which must consider whether the sentence was influenced by passion, prejudice, or any other arbitrary factor. It also must consider whether the sentence is disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. Should the state supreme court affirm the death sentence, it must include in its decision reference to the similar cases it has considered. The vote was a lopsided 7–2, with only Justices Brennan and Marshall dissenting.

The Georgia death-penalty statutes would become a model for the nation. For a fuller understanding, see the actual text in Appendix A.

Many of the thirty-four other states to reenact their-death penalty laws had done so in a fashion much like Georgia. And those that didn't were generally quick to follow Georgia's lead. The death penalty was back. From 1976 through September 2012, the Court's decision in the Gregg case and in the related cases has allowed for the execution of more than 1,300 convicted murderers.34 Paradoxically, Troy Gregg was not one of them.

Gregg stretched out his date with death at the Georgia State Penitentiary at Reidsville, Georgia, as best he could. There were still some additional appeals available, and he filed a number of complaints with corrections officials about the prison conditions, which he claimed were inhumane.

As might be expected on death row in any state, Georgia's was populated by the worst of the worst—and Gregg, over the years, got to know his neighbors quite well. Among them was Carl Isaacs, sentenced to death for the massacre of six members of a farm family in Seminole County, Georgia, including a young woman who had been savagely raped before being shot in the back and head. Isaacs had previously escaped from a minimum-security prison on Maryland's Eastern Shore. He took great pride in the escapade and was hoping to repeat the achievement at Reidsville with a carefully selected coterie of fellow murderers.

Troy Gregg was one; Tim McCorquodale, another. McCorquodale, a member of a violent North Carolina biker group calling themselves the “Outlaws,” had been convicted of the torture, rape, and murder of a twenty-year-old woman—a crime often described as one of the most gruesome in Georgia's history.

There were five inmates on the team. Isaacs had been orchestrating the escape for more than a year. Among other things, Isaacs was an accomplished tailor; he hoped to duplicate the uniforms of prison guards using pajamas, belts, black shoes, and even the insignias from actual uniforms, most of which had to be smuggled into the prison. Isaacs managed to have hacksaw blades smuggled in as well, concealed in gift items such as portable radios. The men worked in shifts and in stealth to cut through the bars on their cells, masking the cuts with gum and spit and shoe polish.

Isaacs loved attention and shared some of his exploits, including his plan to break out of prison, with Charlie Postell, an editor at the Albany Herald newspaper. He even tried to get Postell to assist—it is unclear to what extent, if any, he did. But Postell did publish his interviews with Isaacs and was well known to the other inmates.

Time, however, was running out for Gregg. He was scheduled to be put to death in the electric chair at Reidsville on July 29, 1980. His escape was planned for the previous day, the early-morning hours of July 28.

Time did run out, ironically, for the mastermind of the plot, Carl Isaacs. Two hours before the escape was to begin, Isaacs heard footsteps along the catwalk. Seconds later, a guard stopped in front of his cell, “Pack up your stuff,” he said. “You're being transferred this morning.”35 Isaacs figured it would be better to let the others go without him rather than risk blowing the operation. He did not object or try to move up the escape.

At approximately 5:30 in the morning on July 28, Gregg, McCorquodale, and two other convicted murderers staged probably the most daring escape in Georgia history. It was a scenario worthy of Hollywood, with script and costumes by the absent Carl Isaacs. A car was waiting for them in the prison parking lot, keys in the sun visor as planned, the gas tank full. The prisoners made their way out of the prison in their guard disguises unchallenged, and they drove away. They were free.

Gregg was so proud of himself, he could hardly wait to break the news to Charlie Postell, the Albany Herald editor. Postell called the prison to alert them to the escape and was told he was mistaken, that all four inmates were accounted for. Prison officials learned to their horror a short while later that Postell had it right.36 An all-points bulletin circulated throughout the southeastern United States. (Postell and his wife Judi wound up being charged by authorities as accessories to the escape. The charges were later dropped.)

The dragnet for the escaped inmates, four of the most ruthless killers in Georgia's prison system, was growing rapidly. McCorquodale maintained ties with his Outlaws biker group, which had members in the Charlotte, North Carolina, area. It's not exactly clear how law enforcement found them, possibly on a tip. But find them they did, in a small, four-room brick home on the shores of Lake Wylie, just southwest of Charlotte. After a four-hour siege, police fired tear gas into the home and then watched as McCorquodale and two other fugitives came stumbling out. Troy Gregg, however, was not among them.

The mystery of Gregg's whereabouts was solved a few days later; his body was found floating in Mountain Island Lake, about twelve miles away from where his cohorts were captured. During the manhunt, Gregg, McCorquodale, and some of McCorquodale's former Outlaw biker buddies were having drinks at the Old Yellow Tavern, a biker bar on the banks of the Catawba River. Arrogant and something of a braggart, Gregg made an unflattering remark about the girlfriend of one of the bikers and a fracas ensued.37

Court testimony established that McCorquodale, who was six feet three and weighed about three hundred pounds, knocked Gregg down and began stomping on him, that he brought his right foot down with all his weight on Gregg's upper chest, throat, and head. Authorities said Gregg died from suffocation due to swelling from a blow or blows to the throat, all less than twenty-four hours after his scheduled execution at Reidsville. The man whose case had laid the groundwork for the execution of more than 1,300 inmates over the next thirty-five years, would be spared execution by the state—but not by a fellow inmate.

Tim McCorquodale and Carl Isaacs were eventually put to death in Georgia's electric chair. The other two escapees later had their death sentences overturned; they are serving life terms in the Georgia prison system.

The initial plaintiff in this life-and-death chronicle, William Furman, is behind bars—but not for murder. His initial sentence was changed to life in prison after the Supreme Court decision; in Georgia, that meant he could eventually be eligible for parole. He made it on his fourth try, and was released on parole in 1984. He stayed out of trouble for two decades but was arrested in 2004, at the age of sixty-two, for burglarizing a home in Macon, Georgia. He is serving a twenty-year prison sentence.

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