Currently, forty jurisdictions (thirty-eight states, the federal government, and the military) authorize capital punishment. Although the U. S. Supreme Court has found there to be some constitutional restrictions on the imposition of the death penalty, it has yet to find that the punishment itself is cruel and unusual. In 1972, the Supreme Court effectively overturned all then-existing capital statutes when it held in Furman v. Georgia that such statutes must ensure that the death penalty will not be imposed in an ‘‘arbitrary and capricious’’ manner.
In the aftermath of the Furman decision, thirty-five states drafted new death penalty statutes. The statutes that the Supreme Court upheld as complying with the Eighth Amendment included those with the following characteristics: separating the guilt/innocence phase from the sentencing phase of the trial; limiting the types of crimes that would qualify for capital punishment; creating specific aggravating factors, at least one of which must be found to exist before a jury can even consider the death penalty; specialized appellate review of death sentences; requiring that juries weigh aggravating and mitigating factors in determining whether a death sentence is appropriate. The Supreme Court struck down statutes mandating a death sentence for specific crimes, ruling that such statutes violate the Eighth Amendment because they do not allow for an individualized determination of sentence.
Although the specific death penalty sentencing procedures vary by jurisdiction, every state currently has what is referred to as a ‘‘bifurcated’’ trial procedure. In these proceedings, the jury first determines whether the defendant is guilty or not guilty of the offense of capital murder. Then, if a verdict of guilty is returned, the jury determines the defendant’s sentence, which, in most jurisdictions, includes a choice between life without the possibility of parole and death. The sentencing phase of a capital trial shares many of the same characteristics as the guilt/innocence phase. For example, double jeopardy provisions have been deemed to apply to a jury ‘‘verdict’’ of life imprisonment, and the defendant is entitled to have a jury determine the existence of aggravating factors. Special rules also apply with respect to selection of jurors for capital cases, a process referred to as ‘‘death qualification.’’ This process seeks to eliminate those jurors who would be unable to consider both life and death as potential sentences.
Although capital sentencing statutes also vary by jurisdiction, they all essentially involve, in some form, a weighing of mitigating factors against aggravating factors. Generally, if the aggravating factors outweigh the mitigating factors, the jury may return a verdict of death, although it is not always required. Common aggravating factors include the manner in which the killing is committed, any future danger that the defendant may pose, and the status of the victim. Common mitigating circumstances include the age of the defendant at the time the crime was committed, the relative role that the defendant played in the killing, mental health issues suffered by the defendant, lack of prior criminal record, and the defendant’s personal background.
JUDITH M. BARGER
References and Further Reading