Gregg v. Georgia
Supreme Court of the United States
Argued March 30–31, 1976 Decided July 2, 1976
Full case name	Troy Leon Gregg v. State of Georgia; Charles William Proffitt v. State of Florida; Jerry Lane Jurek v. State of Texas; James Tyrone Woodson, et al. v. State of North Carolina; Roberts, et al. v. Louisiana
Citations	428 U.S. 153 (more) 96 S. Ct. 2909; 49 L. Ed. 2d 859; 1976 U.S. LEXIS 82
Prior history	Certiorari to the Supreme Courts of Georgia, Florida, North Carolina, and Louisiana, and the Court of Criminal Appeals of Texas
Holding
The imposition of the death penalty does not, automatically, violate the Eighth and Fourteenth Amendment. If the jury is furnished with standards to direct and limit the sentencing discretion, and the jury's decision is subjected to meaningful appellate review, the death sentence may be constitutional. If, however, the death penalty is mandatory, such that there is no provision for mercy based on the characteristics of the offender, then it is unconstitutional.
Court membership
Chief Justice Warren E. Burger Associate Justices William J. Brennan, Jr. · Potter Stewart Byron White · Thurgood Marshall Harry Blackmun · Lewis F. Powell, Jr. William Rehnquist · John P. Stevens
Case opinions
Majority	Stewart, joined by Powell, Stevens
Concurrence	Rehnquist
Concurrence	White, joined by Burger, Rehnquist
Concurrence	Blackmun
Dissent	Brennan
Dissent	Marshall
Laws applied
U.S. Const. amend. VIII

Gregg v. Georgia, Proffitt v. Florida, Jurek v. Texas, Woodson v. North Carolina, and Roberts v. Louisiana, 428 U.S. 153 (1976), reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. Referred to by a leading scholar as the July 2 Cases^[1] and elsewhere referred to by the lead case Gregg, the Supreme Court set forth the two main features that capital sentencing procedures must employ in order to comport with the Eighth Amendment bar on "cruel and unusual punishments." The decision essentially overturned the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238 (1972).

Background[link]

All five cases share the same basic procedural history. After the Furman decision, the states of Georgia, Florida, Texas, North Carolina, and Louisiana amended their death penalty statutes to meet the Furman guidelines. Subsequently, the five named defendants^[2] were convicted of murder and sentenced to death in their respective states. The respective state supreme court^[3] upheld the death sentence. The defendants then asked the U.S. Supreme Court to review their death sentence, asking the Court to go beyond Furman and declare once and for all the death penalty to be "cruel and unusual punishment" and thus in violation of the Constitution; the Court agreed to hear the cases.

In the July 2 Cases, the Court's goal was to provide guidance to states in the wake of Furman. In Furman only one basic idea could command a majority vote of the Justices: capital punishment, as then practiced in the United States, was cruel and unusual punishment because there were no rational standards that determined when it was imposed and when it was not. The question the Court resolved in these cases was not whether the death sentence imposed on each of the individual defendants was cruel, but rather whether the process by which those sentences were imposed was rational and objectively reviewable.

Capital punishment and the Eighth Amendment[link]

The defendants in each of the five cases urged the Court to go farther than it had in Furman by holding once and for all that capital punishment was cruel and unusual punishment that violated the Eighth Amendment. However the Court responded that "The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman." Both Congress and 35 states had complied with the Court's dictates in Furman by either specifying factors to be weighed and procedures to be followed when imposing a death sentence, or dictating that the death penalty would be mandatory for specific crimes. Furthermore, a referendum in California had overturned the California Supreme Court's earlier decision (California v. Anderson) holding that the death penalty violated the California constitution. The fact that juries remained willing to impose the death penalty also contributed to the Court's conclusion that American society did not believe in 1976 that the death penalty was in all circumstances a cruel and unusual punishment.

The Court also found that the death penalty "comports with the basic concept of human dignity at the core of the [Eighth] Amendment". The death penalty serves two principal social purposes—retribution and deterrence. "In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct". But this outrage must be expressed in an ordered fashion, for America is a society of laws. Retribution is consistent with human dignity, because society believes that "certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death". And although it is difficult to determine statistically how much crime the death penalty actually deters, the Court found that in 1976 there was "no convincing empirical evidence" supporting either the view that the death penalty is an effective deterrent to crime or the opposite view. Still, the Court could not completely discount the possibility that for certain "carefully contemplated murderers", "the possible penalty of death may well enter into the cold calculus that precedes the decision to act".

Finally, the Court considered whether the death penalty is "disproportionate in relation to the crime for which it is imposed". Although death is severe and irrevocable, the Court could not say that death was always disproportionate to the crime of deliberately taking human life. "It is an extreme sanction, suitable to the most extreme of crimes".

Historical disapproval of mandatory death sentences[link]

The Court was determined to simultaneously save capital punishment in the United States and impose some reasoned basis for carrying it out. That reasoning flows from the Eighth Amendment's cruel and unusual punishment clause. Although capital punishment is not per se cruel and unusual, it must still be carried out in a manner consistent with the evolving standards of decency that mark the progress of a maturing society. In the Court's view, the country's history with capital punishment suggests that those evolving standards of decency could not tolerate a return to the mandatory death penalty for murder that had prevailed in medieval England.

In medieval England, the penalty for a vast number of serious crimes, including murder, was death. This rule traveled with the colonists to America, and was the law in all states at the time the Eighth Amendment was adopted in 1791. By then, however, a problem with the common-law mandatory death penalty had crept into the legal system. If the jury has only two options—convicting a defendant of murder, where the penalty is death, or acquitting the defendant outright—it has no vehicle to express the sentiment that the defendant should be punished somehow, but not executed. Faced with this dilemma, some juries would acquit the defendant in order to spare his life. Of course, this meant that an obviously guilty person would go free.

To mitigate the harshness of the common-law rule, Pennsylvania divided murder into "degrees" in 1794. First-degree murder, a capital crime, was limited to all "willful, deliberate, and premeditated" murders. All other murder was second-degree murder, and not a capital crime. This development eased the tension created by the common-law mandatory death penalty, but some juries still refused to convict defendants who were clearly guilty of first-degree murder because that crime carried a mandatory death penalty.

Recognizing that juries in capital cases found discretion in sentencing desirable, Tennessee, Alabama, and Louisiana afforded their juries this discretion in the 1840s. Finally, the jury could respond to mitigating factors about the crime or the criminal and withhold the death penalty even for convicted first-degree murderers. This development spread, and by 1900 23 states and the federal government had discretionary sentencing in capital cases. Fourteen more states followed in the first two decades of the 20th century, and by 1963 all death-penalty jurisdictions employed discretionary sentencing. In particular, North Carolina enacted a discretionary sentencing law in 1949.

Decision of the Court[link]

In his concurrence in Furman, Justice Potter Stewart remarked that the death penalty was "cruel and unusual in the same way that being struck by lightning is cruel and unusual." The Court set out two broad guidelines that legislatures must follow in order to craft a constitutional capital sentencing scheme:

• First, the scheme must provide objective criteria to direct and limit the death sentencing discretion. The objectiveness of these criteria must in turn be ensured by appellate review of all death sentences.
• Second, the scheme must allow the sentencer (whether judge or jury) to take into account the character and record of an individual defendant.

In Gregg, Proffitt, and Jurek, the Court found that the capital sentencing schemes of Georgia, Florida, and Texas, respectively, met these criteria; whereas in Woodson and Roberts, the Court found that the sentencing schemes of North Carolina and Louisiana did not.

Constitutional sentencing procedures[link]

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,"jury 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. Currently, those states which still maintain a death penalty option have a mandatory appeal of the sentence (defendants sentenced to death cannot waive this appeal, but can waive appeals beyond this stage subject to a compentency hearing).

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[link]

Georgia[link]

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),^[4] 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."^[5]
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.^[6]

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[link]

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[link]

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"^[7] (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.^[8] 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[link]

North Carolina[link]

In 1974, the North Carolina General Assembly (similar to the approach taken by the Texas Legislature) chose to adopt a narrow definition of "first-degree murder" which would be eligible for the death penalty, which was defined as:

murder perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary, or other felony.

North Carolina had also enacted a mandatory death penalty for first-degree rape, but the Court later ruled in Coker v. Georgia that rape is not a capital crime, at least where the victim is not killed.

The North Carolina Supreme Court had ruled that its capital sentencing scheme could survive Furman analysis if the legislature removed the discretionary sentencing provision. However, it was the lack of discretion in sentencing that the Court used to rule the scheme unconstitutional.

Louisiana[link]

In 1973, the Louisiana Legislature adopted the approach taken by North Carolina, by redefining first-degree murder as the killing of a human being in one of five circumstances:

1. when the offender has a specific intent to kill and is engaged in the perpetration of aggravated kidnapping, aggravated rape, or armed robbery;
2. when the offender has a specific intent to kill a fireman or peace officer engaged in the performance of his duties;
3. when the offender has a specific intent to kill and has previously been convicted of an unrelated murder or is serving a life sentence;
4. when the offender has a specific intent to kill or inflict great bodily harm on more than one person; and
5. when the offender has a specific intent to kill and has been offered or has received anything of value for committing the murder

Also, unlike North Carolina, Louisiana law required the jury in all first-degree murder cases to be instructed on second-degree murder and manslaughter, crimes ineligible for the death penalty.

Although Louisiana had created a class of death-eligible crimes somewhat narrower than North Carolina had, it still had a mandatory death penalty for a significant range of crimes; the lack of discretion in sentencing caused the Louisiana scheme to suffer the same unconstitutional infirmities as North Carolina's.

Other views expressed in these cases[link]

Justices Brennan and Marshall expressed their views, which they also articulated in Furman, that the death penalty does not deter crime and that our society has evolved to the point that it is no longer an appropriate vehicle for expressing retribution. In every subsequent capital case that would come before the Court during their tenures, they would refer to their opinions in Gregg in support of their vote against the death penalty.

Justice White countered that capital punishment cannot be unconstitutional because the Constitution expressly mentions it and because two centuries of Court decisions assumed that it was constitutional. Furthermore, for White the judgment of the legislatures of 35 states was paramount, and suggested that the punishment should remain in use. He also felt that the Court should defer to a state legislature's response to the problem of juror response to the prospect of capital punishment, rather than dictate that the Eighth Amendment requires a particular response.

White also disagreed that the Constitution required a separate penalty hearing before imposing the death penalty. "Even if the character of the accused must be considered under the Eighth Amendment, surely a State is not constitutionally forbidden to provide that the commission of certain crimes conclusively establishes that the criminal's character is such that he deserves death." He also saw no difference between Louisiana's definition of first-degree murder and Texas's definition of capital murder.

Justice Rehnquist would have upheld North Carolina's and Louisiana's mandatory death penalties. He disputed the historical evidence adduced in support of the claim that American juries dislike mandatory death penalties. He also felt that the Court's decisions had an analytical flaw. The Court had struck down the mandatory death penalty because it took away discretion from the jury. Yet, Rehnquist pointed out, a jury in Georgia could reject the death penalty for no reason at all. Thus, Georgia's scheme did not alleviate the concerns articulated in Furman about the arbitrariness of the death penalty any more than North Carolina's ignored them. He also disputed whether the appellate review of death sentences inherent in the systems the Court had approved could truly ensure that each death sentence satisfied those concerns. He finally took issue with the idea that the fact that "death is different" requires any extra safeguards in the sentencing process.

Justice John Paul Stevens remarked in October 2010 that his vote in the decision was regrettable. Stevens told the Washington Post that his vote was made with respect for precedent within the court that held capital punishment to be constitutional.

Impact[link]

The July 2 Cases mark the beginning of the United States's modern legal conversation about the death penalty. Major subsequent developments include forbidding the death penalty for rape (Coker v. Georgia), restricting the death penalty in cases of felony murder (Enmund v. Florida), exempting the mentally handicapped (Atkins v. Virginia) and juvenile murderers (Roper v. Simmons) from the death penalty, removing virtually all limitations on the presentation of mitigating evidence (Lockett v. Ohio, Holmes v. South Carolina), requiring precision in the definition of aggravating factors (Godfrey v. Georgia, Walton v. Arizona), and requiring the jury to decide whether aggravating factors have been proved beyond a reasonable doubt (Ring v. Arizona).

See also[link]

• List of United States Supreme Court cases, volume 428

Footnotes[link]

External links[link]

Wikisource has original text related to this article: Gregg v. Georgia

• Gregg v. Georgia, 428 U.S. 153 (1976) (full text with links to cited material)
• Proffitt v. Florida, 428 U.S. 242 (1976) (full text with links to cited material)
• Jurek v. Texas, 428 U.S. 262 (1976) (full text with links to cited material)
• Woodson v. North Carolina, 428 U.S. 280 (1976) (full text with links to cited material)
• Roberts v. Louisiana, 428 U.S. 325 (1976) (full text with links to cited material)

This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (January 2011)

Gary Mark Gilmore (December 4, 1940 – January 17, 1977) was an American who gained international notoriety for demanding that his own death sentence be fulfilled following two murders he committed in Utah. He became the first person executed in the United States after the U.S. Supreme Court upheld a new series of death penalty statutes in the 1976 decision Gregg v. Georgia. (These new statutes avoided the problems that had led earlier death penalty statutes to be deemed unconstitutional in Furman v. Georgia.) Gilmore was executed by firing squad in 1977.

Biography[link]

Gilmore was born in a hospital in McCamey, Texas on December 4, 1940, the second son of Frank and Bessie Gilmore. Frank Gilmore Sr. was an alcoholic con man who sold fake magazine subscriptions. He had married Bessie, a Mormon outcast from Provo, Utah, on a whim, in Sacramento, California. Frank had many wives and families before her, none of whom he cared about or supported. They had a son, Frank Jr., and then Gary came along while they were wandering aimlessly through Texas under the pseudonym of Coffman to avoid the law. Frank christened him Faye Robert Coffman, which Bessie quickly changed to Gary, once they left Texas. However, this birth certificate proved to be a sore spot years later (Gilmore's mother had kept his original birth certificate). Many years later, in the early 1960s, upon finding the birth certificate that stated his name was "Faye Robert Coffman", Gilmore thought that he had been illegitimate or someone else's son, felt that it was the reason he and his father did not ever get along, and he was very upset and walked out on his mother, Bessie, when she tried to explain to him. ^[1]

The family relocated throughout the Western United States during his childhood, and his father supported the family by selling fake magazine subscriptions. Gilmore had a troubled relationship with his father, whom his brother Mikal described as a "cruel and unreasonable man." Frank Gilmore's mother claimed that Frank was the illegitimate son of magician Harry Houdini. Mikal has said he believes the story is false, however stated that his father and mother believed this. It is still not sure whether this story is true or not, because Fay (Frank Gilmore's mother) who was from Sacramento, told Bessie about Frank's father, whom she had a short relationship with, mentioned he was a famous magician who had stopped into town, and so Bessie went to the library to research it and came up to the conclusion that Harry Houdini had been Frank's father. However, Houdini was only sixteen years old in 1890, the year of Frank Gilmore's birth. Furthermore, he did not start his career as a magician until the following year.

Frank Gilmore, Sr. was strict and quick to anger. Often, he would whip Gary and Frank, Jr. with a razor strap or a belt for little or no reason. Less often, he would beat his wife, Bessie. As he got older, he mellowed some, and the youngest Gilmore son, Mikal, reported in his book Shot In The Heart, that Frank whipped him only one time, and he never did it again after his son told him "I hate you", which made him sad. But with Gary, Frank, Jr., and sometimes the third son, Gaylen, he would beat them with a whip, sometimes badly. In addition, Frank and Bessie would argue loudly and call each other hateful names. Frank would anger Bessie by calling Brigham Young, the second president and prophet of the Church of Jesus Christ of Latter-Day Saints, "Bring'Em Young" and call her crazy, and then Bessie would retaliate saying maybe she was crazy and would kill him one night. Bessie also called him a "Cat-licker", which was supposed to be an epithet for "Catholic", because Frank was Catholic. This went on and on for the longest time, and certainly it led to a lot of emotional problems in all the four Gilmore kids. ^[2]

The Gilmore family settled in Portland, Oregon in 1952. Gilmore began engaging in petty crime as an adolescent, with offenses ranging from shoplifting, car theft and assault and battery. Although Gilmore had an IQ of 133, had high scores on both scholastic and academic tests, and clear artistic skills, he dropped out of high school in the ninth grade. He ran away from home with a friend to Texas, returning to Portland after several months.

By the age of 14, Gilmore started a small car theft ring with other friends, resulting in his first arrest. He was released to his father with a warning. Two weeks later he was back in court on another car theft charge. The court remanded him, at age 14, to the MacLaren Reform School for Boys in Oregon, from which he was released the following year. He was sent to Oregon State Correctional Institution on another car theft charge in 1960, and was released later that year. In the meantime, in 1961, Frank, Sr., was diagnosed with terminal colon cancer. He died a few months later, at the end of June 1962. Gary was broken up over his father's death, even though Frank had abused him physically. Gilmore was in jail in Portland, when he heard from a jailer that his father had died, and he tried to kill himself by cutting his wrist.

In 1962, Gilmore was arrested and sent to the Oregon State Penitentiary for armed robbery and assault. He faced assault and armed robbery charges again in 1964, and was given a 15-year prison sentence as a habitual offender. He was granted conditional release in 1972 to live in a halfway house in Eugene, Oregon on weekdays, and study art at a community college. Gilmore never registered, and within a month he was arrested and convicted of armed robbery. Because of his violent behavior in prison, he was transferred from Oregon to the maximum security federal prison in Marion, Illinois in 1975. He was conditionally paroled in April 1976 and went to Provo, Utah to live with a distant cousin, Brenda Nicol, who tried to help him find work. Gilmore worked briefly at his uncle Vern Damico's shoe store and for Spencer McGrath's insulation company, but he soon returned to his previous lifestyle of stealing, drinking, and getting into fights. Gilmore, then 35, met and had a romance with Nicole Baker, a 19-year-old widow and divorcee, with two young children. The relationship was at first casual, but soon became intense and strained because of Gilmore's aggressive behavior and pressure from Baker's family to stop seeing him.^[3]

Murders[link]

On the evening of July 19, 1976, Gilmore robbed and murdered Max Jensen, a Sinclair gas station employee at 168 East and 800 North in Orem, Utah. The next evening, he robbed and murdered Bennie Bushnell, a motel manager at City Center Inn at 150 West and 300 South in Provo. He murdered these people even though they complied with his demands. As he disposed of the .22 caliber pistol used in both killings, he accidentally shot himself in the hand, leaving a trail of blood from the gun all the way to the service garage where he had left his truck to be repaired shortly before the murder of Bushnell. Michael Simpson witnessed Gilmore hiding the gun in the bushes, seeing the blood and hearing on a police scanner of the shooting at the nearby motel, wrote down Gilmore's license number and called the police. Gilmore's cousin, Brenda, turned him in to police shortly after he called her asking for bandages and painkillers for the injury to his hand. Gilmore gave up without a fight as he was trying to drive out of Provo. He was charged with the murders of Bushnell and Jensen, although the latter case never went to trial, apparently because there were no eyewitnesses.

Trial[link]

Gilmore's murder trial began at the Provo courthouse on October 5. Peter Arroyo, a motel guest, testified that he saw Gilmore in the motel registration office that night and that Gilmore robbed Bushnell by the cash register. After taking all the money, Gilmore was said to have ordered Bushnell to lie down on the floor and then to have shot him in cold blood. The next witness was Gerald F. Wilkes, a local FBI ballistics expert, who testified that he found the shell casing at the crime scene which he compared to Gilmore's gun that was left there. Gilmore's two court-appointed lawyers, Michael Esplin and Craig Snyder, surprised both the prosecutor Noall T. Wootton and Judge J. Robert Bullock by not cross-examining the majority of the witnesses and offering no defense. Gilmore wanted to testify on his own behalf, but suddenly withdrew the request the following day. Both sides made closing arguments.

On October 7, at 10:13 AM, the jury retired to consider the verdict; by mid-day, they had returned with a guilty verdict. Later that day, the jury unanimously recommended the death penalty, because of special circumstances to the crime.

At the time, Utah had two methods of execution — firing squad or hanging. Gilmore elected to be executed by firing squad, saying, "I'd prefer to be shot." The execution was set for November 15 at 8 AM.

Gilmore received several stays of execution, brought about against his expressed wishes by the efforts of the American Civil Liberties Union (ACLU). The last of these occurred just hours before the re-scheduled execution date of January 17. That stay was overturned at 7:30 AM, and the execution allowed to proceed as planned. At a Board of Pardons hearing in November 1976, Gilmore said of the efforts by the ACLU and others to prevent his January 17, 1977 execution: "They always want to get in on the act. I don't think they have ever really done anything effective in their lives. I would like them all — including that group of reverends and rabbis from Salt Lake City — to butt out. This is my life and this is my death. It's been sanctioned by the courts that I die and I accept that."

During the time Gilmore was on death row awaiting his execution, he attempted suicide twice, the first time on November 16 as a result of the first stay issued, and again one month later.

Execution[link]

Gilmore was executed by firing squad at Utah State Prison.

Gary Gilmore was executed on January 17, 1977 at 8:07 a.m. by firing squad at Utah State Prison in Draper, Utah. The night before, Gilmore had requested an all-night gathering of friends and family at the prison mess hall. On the evening before his execution, he was served a last meal of steak, potatoes, milk and coffee; he consumed only the milk and coffee. His uncle, Vern Damico, who attended the gathering later claimed to have smuggled in three small, 50-millilitre Jack Daniel's whiskey shot bottles which Gilmore supposedly consumed. He was then taken to an abandoned cannery behind the prison which served as its death house. He was strapped to a chair, with a wall of sandbags placed behind him to trap the bullets. Five gunmen, local police officers, stood concealed behind a curtain with five small holes, through which they aimed their rifles. When asked for any last words, Gilmore simply replied, "Let's do it!" The Rev. Thomas Meersman, the Roman Catholic prison chaplain, administered the last rites to Gilmore. After the prison physician cloaked him in a black hood, Gilmore uttered his last words to Father Meersman: "Dominus vobiscum" (Latin, translation: "The Lord be with you.") Meersman replied, "Et cum spiritu tuo ("And with your spirit")^[4]

Gilmore had requested that, following his execution, his eyes be used for transplant purposes. Within hours of the execution, two people received his corneas. Most of his other organs were used for transplants as well. His body was sent for an autopsy and cremated later that day. The following day, his ashes were scattered from an airplane over Spanish Fork, Utah.^[5]

Cultural impact[link]

As Gilmore was the first person in the United States executed since the reinstatement of the death penalty in 1976, his story had immense cultural resonance at the time, and it continues to echo in the works of writers, artists and even advertisers to this day.

Before his execution, the December 11, 1976, episode of NBC's Saturday Night Live featured guest host Candice Bergen and the cast singing a Christmas-themed medley entitled "Let's Kill Gary Gilmore For Christmas". Dressed in winter attire and surrounded by fake snow, the performers sang the medley of familiar Christmas carols with altered lyrics. Lyrics set to "Winter Wonderland" included this line: "In the meadow we can build a snowman / One with Gary Gilmore packed inside / We'll ask him, 'Are you dead yet?' He'll say, 'No, man' / But we'll wait out the frostbite till he dies." ^[6][7] A later episode of 'Saturday Night Live, on October 20, 1979 featured guest host Eric Idle performing impersonations while strapped to a stretcher, assisted by orderlies. With the stretcher standing on end, Idle covered his eyes with a black blindfold and announced it as an impersonation of Gary Gilmore.

Other television comedies have referred to the Gilmore execution, specifically his final words, "Let's do it." The Seinfeld episode "The Jacket" originally included a reference to Gary Gilmore's final words, but the scene was changed during the final shoot. In the deleted scene, Jerry is trying to decide upon buying the titular jacket, when he remarks to Elaine: "Well, in the immortal words of Gary Gilmore 'Let's do it.'" On the Roseanne episode "The Wedding", Roseanne's daughter Darlene is asked if she is ready to get married. Darlene responds with a similar punchline, "Well in the words of Gary Gilmore, 'Let's do it!'". On NYPD Blue, Andy Sipowicz cracks "Let's do it," as his wedding is about to begin, then explains further, "That's what that guy in Utah said...'Let's do it.' He said that to the firing squad just before they whacked him."

The founder of advertising agency Wieden+Kennedy, Dan Wieden credits the inspiration for his "Just Do It" Nike slogan to Gary Gilmore’s last words.^[8]

Gilmore's story was documented in Norman Mailer's Pulitzer Prize-winning novel The Executioner's Song (1979). Notable not only for its portrayal of Gilmore and the anguish surrounding the murders he committed, the book also took a central position in the national debate over the revival of capital punishment. Another writer to blend fact with fiction was the Colombian writer Rafael Chaparro Madiedo, who made Gary Gilmore one of the main characters of his 1992 National Prize Novel Opio en las Nubes.^[9]

In 1982, The Executioner's Song was adapted by Mailer for a television movie of the same name starring Tommy Lee Jones as Gilmore, and co-starring Christine Lahti, Eli Wallach, and Rosanna Arquette. Jones won an Emmy Award for his portrayal of Gilmore. Gilmore's brother's memoir Shot in the Heart was also made into an HBO movie. Another film related influence was artist Matthew Barney's Cremaster 2 (1999), in which Gilmore was made the main character of the second part of The Cremaster Cycle, a series of five films. Gilmore, played by an actress this time, appears in the beginning of Cremaster 3 in a metamorphosed form.

Jack Nicholson's performance in The Postman Always Rings Twice was reportedly inspired in part by Gilmore.^[10]

Many musicians have explored the Gilmore case. In 1977, The Adverts had a top 20 hit in the UK with the song "Gary Gilmore's Eyes".^[11] The lyrics describe an eye donor recipient realizing his new eyes came from the executed murderer.^[12] The song was later covered by the German punk rock band Die Toten Hosen and a country version of the song was recorded by Dean Schlabowske. Also in 1977, New York City experimental punk band Chain Gang released the song "Gary Gilmore and the Island of Dr. Moreau" as the B-side to their single "Son of Sam" about a contemporary serial killer that was still at large.^[13] The Police's song "Bring on the Night", from their 1979 album Reggatta de Blanc, speculated on Gary Gilmore's possible feelings on the evening before the execution took place. In 1980, The Judy's released the song "How's Gary?" on their album Wonderful World of Appliances. The song presumably asks Gary Gilmore's mother what's wrong with him, saying that he never comes out to play anymore; the song also inquires about the holes in his vest and why he is wearing a blindfold.

Several playwrights have also integrated the Gilmore story into their work in one way or another. The Oakland-based performance artist Monte Cazazza sent out photos of himself in an electric chair on the day of the execution. One of these was mistakenly printed in a Hong Kong newspaper as the real execution. Cazazza was also photographed alongside COUM Transmissions/Throbbing Gristle members Genesis P-Orridge and Cosey Fanni Tutti for the "Gary Gilmore Memorial Society" postcard, in which the three artists posed blindfolded and tied to chairs with actual loaded guns pointed at them to depict Gilmore's execution.^[14] In Christopher Durang's play Beyond Therapy (1983), the character Bruce claims that he "Wanted to see Gary Gilmore executed on television." The Welsh playwright Dic Edwards dramatised Gilmore's life in his 1995 play Utah Blue.

See also[link]

Biography portal

• Capital punishment in the United States
• Capital punishment in Utah
• The Executioner's Song
• John Albert Taylor

Notes[link]

References[link]

External links[link]

• Gary Mark Gilmore — Summary of Execution
• [1] gilmoregun.com-story of murder weapon
• Gary Gilmore on Crime Library
• Gary Gilmore at Find a Grave