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

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.”

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

JEL Classification: K14, K42