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GUIDING CAPITAL SENTENCING DISCRETION BEYOND THE 'BOILER PLATE' - MENTAL DISORDER AS A MITIGATING FACTOR

NCJ Number
56787
Journal
Georgetown Law Journal Volume: 66 Issue: 3 Dated: (FEBRUARY 1978) Pages: 757-836
Author(s)
J S LIEBMAN; M J SHEPARD
Date Published
1978
Length
80 pages
Annotation
A FOUR-FACTOR ANALYSIS OF MITIGATING CIRCUMSTANCES WHICH MAY AFFECT THE DECISION TO IMPOSE THE DEATH PENALTY SHOWS THAT MENTAL RETARDATION HAS HIGH MITIGATORY POTENTIAL BUT SOCIOPATHY HAS LOW MITGATORY POTENTIAL.
Abstract
IN FIVE DECISIONS HANDED DOWN ON JULY 2, 1976, THE U.S. SUPREME COURT HELD THAT THE DEATH PENALTY MAY BE IMPOSED FOR THE CRIME OF MURDER AS LONG AS THERE ARE CLEAR STANDARDS TO GUIDE THE SENTENCING AUTHORITY WHICH CONSIDER MITIGATING INFORMATION ABOUT THE OFFENDER. THE COMMON LAW AND NUMEROUS FEDERAL AND STATE JUDICIAL DECISIONS HAVE SPELLED OUT MANY MITIGATING CIRCUMSTANCES. THEY CAN BE GROUPED INTO FOUR FACTORS; (1) WHETHER THE OFFENDER'S SUFFERING EVIDENCES EXPIATION OR INSPIRES COMPASSION; (2) WHETHER HIS MENTAL CONDITION AT THE TIME OF THE CRIME AFFECTED HIS RESPONSIBILITY FOR HIS ACTIONS, THEREBY DIMINISHING SOCIETY'S NEED FOR REVENGE; (3) WHETHER HE WAS LESS AFFECTED THAN THE MENTALLY NORMAL OFFENDER BY THE DETERRENT THREAT OF CAPITAL PUNISHMENT AT THE TIME OF THE CRIME; AND (4) WHETHER THE VALUE OF THE DEATH PENALTY AS PUNISHMENT WOULD BE OFFSET BY THE DIFFICULTY THE PUBLIC WOULD HAVE IN IDENTIFYING WITH THE EXECUTED OFFENDER. THE DETERRENT VALUE OF CAPITAL PUNISHMENT LIES IN THE IDENTIFICATION OF OTHERS WITH THE OFFENDER. MENTAL RETARDATION AND SOCIOPATHY ARE THEN TESTED AGAINST THESE CRITERIA. MENTAL RETARDATION HAS HIGH MITIGATORY POTENTIAL BECAUSE IT INSPIRES COMPASSION AND RENDERS A PERSON LESS IN CONTROL OF HIS ACTIONS. THE DEATH PENALTY WOULD HAVE LITTLE DETERRENT EFFECT. SOCIOPATHY, HOWEVER, IS MERELY AN EXTREME OF BEHAVIOR COMMON IN OUR SOCIETY. MITIGATORY POTENTIAL IS LOW AND PERCEIVED DETERRENCE WOULD PROBABLY BE HIGH. EXTENSIVE FOOTNOTES CONTAIN CASE CITATIONS AND REFERENCES. (GLR)