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Mandatory Mitigation: An Eighth Amendment Mandate to Require Presentation of Mitigation Evidence, Even When the Sentencing Trial Defendant Wishes to Die


Jules Epstein


Widener University - School of Law

September 15, 2011

Temple Political & Civil Rights Law Review, vol. 21, p. 1, 2011
Widener Law School Legal Studies Research Paper No. 11-31

Abstract:     
The Eighth Amendment’s mandate in death penalty proceedings is to “ensure that only the most deserving of execution are put to death[.]” This Article continues development of a thesis of this author, presented in an earlier piece, that it is cruel and unusual punishment to execute those who are not “most deserving,” and that the determination of this must include consideration of mitigation evidence. From this conclusion flows a second one, the focus of this Article - because the Eighth Amendment prohibition against cruel and unusual punishment is a limitation on society’s power, an individual may not consent and submit himself to a punishment that society itself is banned from imposing. A regime of “mandatory mitigation,” overriding a defendant’s wish that no evidence in support of a life sentence be presented, is the only way to ensure that a resulting death sentence does not constitute cruel and unusual punishment by guaranteeing that the fact finder have the information necessary to determine whether he/she is within the narrow class of “most deserving,” at times denominated “the worst of the worst.” The Article shows that such a conclusion is not incompatible with decisional law under the Sixth Amendment that accords an accused the right of self-representation, and with that the right to “preserve actual control over the case he chooses to present to the jury.”

Number of Pages in PDF File: 41

Keywords: death penalty, mitigation, punishment, Eighth Amendment, sentencing

JEL Classification: K14, K42

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Date posted: September 17, 2011 ; Last revised: February 22, 2012

Suggested Citation

Epstein, Jules, Mandatory Mitigation: An Eighth Amendment Mandate to Require Presentation of Mitigation Evidence, Even When the Sentencing Trial Defendant Wishes to Die (September 15, 2011). Temple Political & Civil Rights Law Review, vol. 21, p. 1, 2011; Widener Law School Legal Studies Research Paper No. 11-31. Available at SSRN: http://ssrn.com/abstract=1928052

Contact Information

Jules Epstein (Contact Author)
Widener University - School of Law ( email )
4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States
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