The Death Penalty Sentencing Phase: Non-Statutory Mitigating Factors

The History of Mitigation in Death Penalty Cases

Social Work, Criminal Justice, and the Death Penalty ◽

10.1093/oso/9780190937232.003.0004 ◽

2020 ◽

pp. 34-45

Author(s):

Russell Stetler

Keyword(s):

Death Penalty ◽

The United States ◽

Theory And Practice ◽

Death Sentences ◽

Eighth Amendment ◽

Mitigating Factors ◽

History Of ◽

Definition Of ◽

Effective Representation ◽

The U.S

This chapter discusses how the theory and practice of mitigation have evolved over more than four decades, thereby helping to define the modern death penalty era in the United States. Prior to 1976, juries generally made death penalty decisions in a unitary proceeding. Juries then had unfettered discretion to impose death sentences, and the results were so arbitrary that in 1972 the U.S. Supreme Court struck down all the existing death penalty statutes. In 1976, the Court approved new statutes that guided jurors’ discretion. The Court required individualized sentencing in which jurors could consider mitigating factors based on the diverse frailties of humankind. This broad definition of what might inspire juries to reject death was elaborated in succeeding decades in a series of decisions relying on the Eighth Amendment. Social workers and other nonlawyers became critical members of multidisciplinary capital defense teams providing effective representation under the Sixth Amendment.

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Assessment of Aggravating and Mitigating Factors in the Imposition of the Federal Death Penalty

PsycEXTRA Dataset ◽

10.1037/e571212013-199 ◽

2013 ◽

Author(s):

L. Thomas Kucharski ◽

Bobbi C. Sternheim

Keyword(s):

Death Penalty ◽

Mitigating Factors

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Frontloading Mitigation: The “Legal” and the “Human” in Death Penalty Defense

Law & Social Inquiry ◽

10.1111/j.1747-4469.2009.01177.x ◽

2010 ◽

Vol 35 (01) ◽

pp. 39-65 ◽

Cited By ~ 8

Author(s):

Jesse Cheng

Keyword(s):

Death Penalty ◽

Interview Data ◽

The Other ◽

Standards Of Care ◽

Legal Procedure ◽

Defense Strategy ◽

Capital Trials ◽

Mitigating Factors ◽

Research Interview

The bifurcation of capital trials into determinations of guilt and sentencing presents defense advocates with what seem to be two distinct domains of knowledge—one apparently “legal” in character, the other “human.” But this epistemological division is actually not so clear in practice. This article dissects the procedural and strategic mechanisms through which these two domains unsettle and reconstitute the other. I provide a historical, empirically grounded account that explicitly articulates the connections between developments in legal procedure, prevailing standards of care concerning the need to conduct humanistic investigations of mitigating factors, and the on‐the‐ground trial practice of “frontloading” as a defense strategy. Drawing from documentary research, interview data with leading capital defense practitioners, and analytical observations based on my own experience as a mitigation specialist, this article presents itself as a case study of the processes of mutually constitutive rupturing that reconfigure the categories of the legal and the human.

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