The proposition that the death penalty was not always cruel and unusual punishment was just the beginning of the discussion. Furman had held that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." The question the Court confronted in these five cases was whether the procedures crafted by Georgia, Florida, Texas, North Carolina, and Louisiana adequately minimized that risk. In all five cases, the Court's primary focus was on the jury.

Although in most criminal cases the judge decides and imposes the sentence,"[j]ury sentencing has been considered desirable in capital cases in order to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect the evolving standards of decency that mark the progress of a maturing society." The drafters of the Model Penal Code concluded that the now-familiar bifurcated procedure, in which the jury first considers the question of guilt without regard to punishment, and then determines whether the punishment should be death or life imprisonment, is the preferable model. This was the model that the Court approved in these cases—although it tacitly approved a model without any jury involvement in the sentencing process, an approval that persisted until 2002's Ring v. Arizona.

The drawback of having juries rather than judges fix the penalty in capital cases is the risk that they will have no frame of reference for imposing the death penalty in a rational manner. Although this problem may not be totally correctible, the Court trusted that the guidance given the jury by the aggravating factors or other special-verdict questions would assist it in deciding on a sentence. The drafters of the Model Penal Code "concluded that it is within the realm of possibility to point to the main circumstances of aggravation and mitigation that should be weighed and weighed against each other when they are presented in a concrete case." For the Court, these factors adequately guarded against the risk of arbitrary imposition of the death sentence.

Every death sentence involves first an eligibility determination and then a selection of an eligible defendant for the death penalty. A defendant is eligible for the death penalty once the jury has concluded that he is a member of that narrow class of criminal defendants who have committed the most morally outrageous of crimes. An eligible defendant is then selected for the death penalty after the sentencer takes into account mitigating evidence about the character and record of the defendant in order to decide whether that individual is worthy of a death sentence.

In addition to jury sentencing through the guidance of aggravating factors, a constitutional capital sentencing scheme must provide for appellate review of the death sentence, typically by the state's supreme court. This review must not be a rubber stamp; there must be evidence in the state's decisional law that the court takes seriously its responsibility to ensure that the sentence imposed was not arbitrary.

With Gregg and the companion cases, the Court approved three different schemes that had sufficiently narrow eligibility criteria and at the same time sufficiently broad discretion in selection. By contrast, the two schemes the Court disapproved had overly broad eligibility criteria and then no discretion in sentencing.

Capital Punishment Schemes Approved by the Court

Georgia

Under the Georgia scheme (which generally followed the Model Penal Code), after the defendant was convicted of, or pled guilty to, a capital crime (under the first part of the bifurcated trial proceeding), the second part of the bifurcated trial involved an additional hearing at which the jury received additional evidence in aggravation and mitigation. In order for the defendant to be eligible for the death penalty, the jury needed to find the existence of one of ten aggravating factors:

1. The defendant has previously been convicted of a capital felony or has a history of committing serious felonies.

2. The capital felony was committed while the defendant was committing another capital felony.

3. The defendant created a grave risk of death to others.

4. The defendant committed the crime for the purpose of receiving money or anything else of value.

5. The defendant killed a judge or prosecutor exercising his official duties.

6. The defendant hired a killer.

7. The crime was "outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."

8. The defendant killed a police officer, prison guard, or fireman in the line of duty.

9. The offense was committed by someone who had escaped from prison.

10. The offense was committed for the purpose of avoiding arrest.

Once the jury found that one or more of the aggravating factors existed beyond a reasonable doubt, then the defendant would be eligible for the death penalty. The jury may, but was not required to, then evaluate all the evidence it had heard—including mitigating evidence and other aggravating evidence not supporting one of the ten factors beyond a reasonable doubt—and decide whether the defendant should live or die. This scheme is called a non-weighing scheme, because the sentencer is not required to weigh the statutory aggravating factors against mitigating evidence before imposing a death sentence.

The Court found that, because of the jury's finding at least one aggravating factor was a prerequisite for imposing the death penalty, Georgia's scheme adequately narrowed the class of defendants eligible for the death penalty. Although there was admittedly some discretion as to the mitigation phase, that discretion is channeled in an objective way, and therefore provided for individualized sentencing. Thus, Georgia's death penalty scheme complied with the Furman requirements and was thus approved by the Court.

Florida

Florida's scheme differed from Georgia's in two respects.

First, at the sentencing hearing, the jury determined whether one or more aggravating factors exist, drawing on a list very similar to Georgia's. Then the jury was specifically asked to weigh the mitigating evidence presented against the statutory aggravating factors that have been proved. This scheme is called a weighing scheme.

Second, the jury's role was only advisory; the judge could disregard the jury's sentencing recommendation, but had to explain his reasoning if he did. Under Florida law, if the jury recommended life but the judge imposed a death sentence, "the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." The trial judge must independently reweigh the aggravating factors against the mitigating factors.

The Court concluded that, as the sentencer's discretion was limited in an objective fashion and directed in a reviewable manner, Florida's scheme also adequately narrowed the class of defendants eligible for the death penalty. The Court noted that Florida's scheme came closest to the Model Penal Code's recommendation of an ideal sentencing scheme, as it used a weighing scheme whereas Georgia's scheme did not, thus allowing for individual sentencing. Thus, Florida's death penalty scheme also complied with the Furman requirements and was thus also approved by the Court.

Texas

Texas' scheme differed considerably from that suggested by the Model Penal Code and followed in large part by Georgia and Florida.

In order to narrow the class of death penalty-eligible defendants as required by Furman, the Texas Legislature did not adopt the "aggravating factors" approach outlined by the Model Penal Code, Instead, it chose to modify and severely narrow the legal definition of "capital murder", thus requiring certain objective elements to be present before one could be charged with capital murder and thus eligible for the death penalty. The 1976 law defined capital murder in Texas as involving one of the five situations:

• murder of a peace officer or fireman;

• murder committed in the course of committing kidnapping, burglary, robbery, forcible rape, or arson;

• murder committed for remuneration (contract killing);

• murder committed while escaping or attempting to escape from a penal institution; and

• murder committed by a prison inmate when the victim is a prison employee.

If the defendant was convicted of capital murder, and if the prosecution sought the death penalty (which it has never been required to do in Texas), the second part of the bifurcated trial required the jury to consider two (or sometimes three) "special issues":

• whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

• whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (under Texas law, "society" was defined as both inside and outside of the prison system; thus, a defendant who would pose a threat to persons inside prison – such as other inmates or correctional officers – would be eligible for the death penalty); and

• if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

If all applicable special issues were answered in the affirmative, then the result would be an automatic death sentence; if any special issue was not answered in the affirmative, the sentence would be life imprisonment.

The Court concluded that Texas' narrow legal definition of capital murder served the same purpose as the aggravating factors in the Georgia and Florida schemes, that being to adequately narrow the class of defendants eligible for the death penalty. The Court even observed that "the principal difference between Texas and the other two States [Georgia and Florida] is that the death penalty is an available sentencing option - even potentially - for a smaller class of murders in Texas" (an ironic observation given that, in the post-Gregg era, Texas has executed more defendants than any other state).

However, the special issues feature and its automatic death sentence imposition (if all were answered in the affirmative) was the key issue in the Court's analysis. In its review, the Texas Court of Criminal Appeals (which serves as the body for automatic appeal of death sentences in Texas) indicated that the second special issue (the "continuing threat to society" issue) would allow the defendant to present mitigating evidence to the jury. The Court concluded that the second special issue would allow for the same extensive consideration of mitigating evidence as the Georgia and Florida schemes. Thus, Texas' death penalty scheme, though considerably different from Florida's and Georgia's also complied with the Furman requirements and was thus also approved by the Court.

Capital Punishment Schemes Rejected by the Court