Thirty years ago this summer, the Supreme Court pondered a double murder committed in the course of a robbery in Georgia.
On a November day in 1973, Troy Gregg had shot Fred Simmons and Bob Moore and left their bodies in a ditch. Troy Gregg was a petty thief, but those murders, and the fragmented opinion announced on July 2, 1976, in Gregg v Georgia, changed the fundamental nature of American justice. A few months before Gregg’s crime, an earlier Supreme Court majority had shut down death rows nationwide. Now Gregg the murderer and Gregg the case put American government back in the business of killing.
It’s easy to tally the numerical consequences of Gregg v Georgia: At the time I write, 1,026 executions, with 41 percent of African-American or Hispanic inmates; 858 lethal injections, 152 electrocutions, eleven gassings, three hangings, two firing squads; 123 death-row exonerations.
But there’s also another sort of accounting. No decision since Plessy v Ferguson has so tormented–or so politicized–the American judicial system. Roe v Wade, far better known, may have ignited a generation of antiabortion fanatics, but in the courts Roe’s central findings have been affirmed time and time again. Coming to terms with Gregg, on the other hand, continues to turn the justice system inside out, whether the subject is innocence, race, lawyering or even the method of execution itself.
Less than a week before Gregg‘s thirtieth anniversary, for instance, the collegiality of the new Roberts Court was shattered by a case over the death penalty in Kansas. In a 5-4 majority opinion written by Clarence Thomas, the Court ruled constitutional Kansas’s policy making the death penalty the “default sentence” in cases where juries can’t decide between life terms and capital punishment. Dissenter David Souter, citing those 123 exonerations as evidence of the death penalty’s fallibility, called his colleagues’ position “obtuse by any moral or social measure.” Justice Scalia shot back that death penalty opponents could not provide “a single verifiable case” of an innocent inmate put to death.
Scalia probably did not read the June 25 Chicago Tribune before sending his diatribe to the printer. If he had, he would have seen exactly what he said doesn’t exist: meticulous and persuasive documentation that in 1989, Texas executed an innocent parolee, Carlos DeLuna, despite the real killer bragging to friends and family of his crime and prosecutors knowing about him. It’s in fact the fourth case of probable innocence in a dead inmate–a subject so far off the national radar that at this writing not a single national newspaper has reported the Tribune‘s wrong-man revelation.
The Kansas case which inspired Scalia’s and Souter’s sparring rested on just one “technicality” of the complex capital-sentencing system. But technicality–legal and even medical–is Gregg‘s legacy. In Gregg, the Supreme Court majority said capital punishment could be fairly applied provided that the judicial system embrace an elaborate series of procedures–among them separate trial and penalty phases, aggravating and mitigating factors. Gregg proposed that the messy business of killing be moderated by cool bureaucratic courtroom mechanisms.