Capital punishment resumed

Further information: Gregg v. Georgia

In 1976, contemporaneously with Woodson and Roberts, the Court decided Gregg v. Georgia, 153 428 U.S. 153 (1976) and upheld a procedure in which the trial of capital crimes was bifurcated into guilt-innocence and sentencing phases. At the first proceeding, the jury decides the defendant's guilt; if the defendant is innocent or otherwise not convicted of first-degree murder, the death penalty will not be imposed. At the second hearing, the jury determines whether certain statutory aggravating factors exist, and whether any mitigating factors exist, and, in many jurisdictions, weigh the aggravating and mitigating factors in assessing the ultimate penalty — either death or life in prison, either with or without parole.

The 1977 Coker v. Georgia decision barred the death penalty for rape, and, by implication, for any offense other than murder. The current federal kidnapping statute, however, may be exempt due to the fact that the death penalty applies if the victim expires in the perpetrator's custody, not necessarily by his hand, thus stipulating a resulting death, which was the wording of the objection. In addition, the federal government retains the death penalty for such non-murder offenses as treason, espionage and crimes under military jurisdiction; there has been no challenge to these statutes as of 2007.

Executions resumed on January 17, 1977, when Gary Gilmore went before a firing squad in Utah. But the pace was quite halting due to use of litigation tactics which involved filing repeated writs for habeas corpus, which succeeded for many in delaying their actual execution for many years. Although hundreds of individuals were sentenced to death in the U.S. during the 1970s and early 1980s, only ten people besides Gilmore (who had waived all of his appeal rights) were actually executed prior to 1984.

Possibly in part due to expedited federal habeas corpus procedures embodied in the Antiterrorism and Effective Death Penalty Act of 1996, the pace of executions has picked up. Since the death penalty was reauthorized in 1976 1,029 people have been executed, almost exclusively by the states, with most occurring after 1990. Texas has accounted for over a third of modern executions (385 as of 8 March 2007); the federal government has executed only 3 people in the last 27 years. California has the greatest number of prisoners on death row, but has held relatively few executions. Throw Away The Key, a group that advocates tougher sentences and victim's rights, estimates that about 1800 people were murdered by the first 1000 people executed since 1976. This is out of a total of 600,000 people murdered in the United States since 1975.

In addition, the Supreme Court has utilized IQ test results during the sentencing phase of some criminal proceedings. The Supreme Court case of Atkins v. Virginia, decided June 20, 2002, held that executions of mentally retarded criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.

After the Supreme Court's 2005 decision in Roper v. Simmons, 543 U.S. 551 (2005), the minimum age at time of crime to be subject to the death penalty was raised to 18.