Whether a capital defendant is to be executed or instead receive life imprisonment typically is determined under modern death penalty statutes through a process of weighing the aggravating and mitigating circumstances in each defendant's case. The United States Supreme Court recently acknowledged what perceptive judge and commentators had been saying for some time-that juries in capital cases, without adequate guidance, may improperly consider certain mitigating factors as factors favoring execution. This problem may occur for instance, when the jury views a defendant's mental disorder as a factor in aggravation because it indicates a propensity for future dangerous behavior. The Supreme Court has previously announced that mislabeling mitigating factors as "aggravating" would violate due process. This Note argues that modern death penalty statutes fail to prevent such mislabeling by capital juries and consequently fail to provide the degree of sentencer guidance required by the Constitution. The Note closes by proposing several alternate solutions to remedy these deficiencies in modern death sentencing schemes.
Joshua N. Sondheimer,
A Continuing Source of Aggravation: the Improper Consideration of Mitigating Factors in Death Penalty Sentencing,
41 Hastings L.J. 409
Available at: https://repository.uchastings.edu/hastings_law_journal/vol41/iss2/5