Aggravating and Mitigating Factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme

115 Pages Posted: 8 Nov 2007 Last revised: 1 Feb 2018


In the 1970's, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. The "guided discretion" capital sentencing scheme that replaced the other schemes, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

This Article argues that today's sentencing scheme is arbitrary because of undefined aggravating factors, unlimited non-statutory aggravating factors, and victim impact evidence. Justices Scalia, Blackmun, and Thomas also have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. At the same time, today's death penalty scheme has moved toward a mandatory scheme as legislatures expand death penalty statutes and the Court sanctions other expansions of the application of the penalty. Thus, the paradox of the present system is that it is both arbitrary and mandatory.

Focusing on the Court's decisions regarding aggravating and mitigating factors, the Article discusses the arbitrary and mandatory aspects of the current system and then examines five options for addressing those constitutional problems: keeping the present system, narrowing the application of the death penalty, returning to unguided discretion statutes, returning to mandatory death penalty schemes, or, as Justices Blackmun and Powell have suggested, abandoning the death penalty.

The Article concludes that a mandatory death penalty scheme is the only way to potentially apply the death penalty in an evenhanded manner. The mandatory aspects of the current scheme and the historical experience with mandatory death penalty schemes, however, illustrate that no human system for selecting defendants for the ultimate punishment can be both fair and non-arbitrary.

Keywords: death penalty, capital punishment, aggravating factors, aggravating circumstances, mitigating factors, mitigating, mitigating circumstances, legislatures, statutes, Eighth Amendment, eligibility factors

JEL Classification: K14, K10, K40

Suggested Citation

Kirchmeier, Jeffrey L., Aggravating and Mitigating Factors: The Paradox of Today's Arbitrary and Mandatory Capital Punishment Scheme. William & Mary Bill of Rights, Vol. 6, No. 2, 1998, Available at SSRN:

Jeffrey L. Kirchmeier (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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