A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice

100 Pages Posted: 15 Jul 2006


Using arguments from philosophy, science, and the law, this Article considers the justifications for our current system of punishment through a unique and in-depth examination of mitigating factors in capital cases.

Because the Supreme Court requires states to allow broad consideration of mitigating circumstances in capital cases, such factors have not been developed in a systematic way. Therefore, this Article first identifies and categorizes the capital case mitigating factors used across the United States, and then the Article examines the legal and moral justifications for the consideration of mitigation.

The Article explains how one category of mitigating factors support a "disease theory" of crime. In analyzing the role of mitigation, the Article considers: utilitarian and retributive punishment theories; Judge David Bazelon's "rotten social background" defense; scientific theories about the causes of criminal behavior; and philosophical concepts of free will and determinism. The Article considers the implications of disease theory and mitigating factors for the criminal justice system, concluding that the development of the law of mitigating factors is at the forefront of the development of new understandings of criminal responsibility.

Just as this Article categorizes the mitigating factors used in capital cases, a previous article by Professor Kirchmeier categorized the aggravating factors used in the United States.

Keywords: criminal law, death penalty, capital punishment, mitigation, mitigating factors, mitigating circumstances, Bazelon, philosophy, crime, free will, determinism, psychology, causes of crime, rotten social background, RSB

JEL Classification: K14, K42

Suggested Citation

Kirchmeier, Jeffrey L., A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice. Oregon Law Review, Vol. 83, 2004. Available at SSRN: https://ssrn.com/abstract=914180

Jeffrey L. Kirchmeier (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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