Mitigation Works: Empirical Evidence of Highly Aggravated Cases Where the Death Penalty Was Rejected at Sentencing

Abstract

This article updates data presented in this law review in 2018 documenting almost two hundred capital cases presenting serious aggravating circumstances where juries nonetheless chose life sentences. This updated Article adds over three hundred fifty new cases in the same highly aggravated categories to the total, now in excess of five hundred fifty cases. The new case lists, which do not purport to be exhaustive, further support the point that the effective investigation and presentation of mitigating evidence can forestall a death sentence no matter how death-worthy the crime facts may appear at first glance.

Indeed, the empirical evidence presented here is so powerful that the cases resulting in death sentences can plausibly be seen as outliers reflecting unjust and arbitrary factors impacting those cases. On that view, our results suggest that inexorable long-term developments are moving towards the abolition of capital punishment both in practice and as a matter of constitutional law.

Keywords: death penalty, sentencing, aggravation, mitigation

JEL Classification: K40, K41, K42, K49