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In Fairness and Mercy: Statutory Mitigating Factors in Capital Punishment Laws

NCJ Number
Criminal Law Bulletin Volume: 30 Issue: 4 Dated: (July-August 1994) Pages: 299-345
J R Acker; C S Lanier
Date Published
47 pages
This analysis of statutory mitigating factors in capital punishment laws focuses on the relevance of mitigating evidence to the offenders culpability, future dangerous, and general deserts.
The paper is the sixth in a series on death penalty legislation. The discussion also focuses on the apparent tension between the Eighth Amendment principles of nonarbitrariness and the individualization that surrounds openended admission of mitigation evidence in capital sentencing trials. It also notes that the Model Penal Code lists eight separate mitigating factors. State laws include factors such as the absence of significant criminal history, extreme mental or emotional disturbance, victim participation or consent, defendant's belief in moral justification or extenuation, defendant's minor participation as accomplice, action under duress or domination of another, imperfect insanity and intoxication, the defendant's age, and other circumstances not recognized under the Model Penal Code. The laws of five States do not specify any mitigating factors, although they specify aggravating factors. Controversy now exists among the United States Supreme Court justices over whether and how individualized sentencing in capital cases, based on mitigating factors, can be reconciled with the Eighth Amendment imperative of nonarbitrary sentencing in capital trials. Footnotes