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AS OF 2004, 38 states plus the U.S. military and federal government have the death penalty in their criminal codes. In 1972, the Supreme Court declared a moratorium on executions in the case of Furman v. Georgia but stopped short of declaring capital punishment itself cruel and unusual. At that time, the court held that the way death sentences were assigned was arbitrary and capricious. States were required to revise the way death sentences were imposed. Most did and now use a bifurcated trial process, where a jury determines the defendant's guilt in the first phase and decides between a life sentence and execution in the second phase. The bifurcated system was declared constitutional in the case Gregg v. Georgia and executions resumed in 1976.

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