Death Penalty Mitigation: Furman v. Georgia and Gregg v. Georgia
The United States Supreme Court’s decisions in Furman v. Georgia and Gregg v. Georgia marked a turning point in the administration of the death penalty, as well as the Supreme Court’s review of it. According to Justice Thurgood Marshall, the Supreme Court did not first address the Eighth Amendment’s prohibition against cruel and unusual punishments until 1879, when it decided Wilkerson v. Utah. The Supreme Court rarely addressed capital questions pre-Furman. At that time, rape and rape of a child were considered capital offenses, and the imposition of the death penalty was mandatory in many jurisdictions. Furman’s de facto moratorium on the death penalty and its resumption after Gregg changed the way the death penalty was administered in the United States.
Post-Gregg, the Supreme Court heard more capital cases. It limited the imposition of the death penalty to cases where the defendant had killed someone or felony murder cases where the defendant was a major participant in the underlying crime and acted with reckless disregard for human life. Capital juries had more discretion in deciding life sentences, and they were able to hear and consider more mitigating evidence. While the Supreme Court had held that all defendants were entitled to counsel regardless of their income pre-Furman in Gideon v. Wainwright (1963), the Supreme Court’s decision in the capital case of Strickland v. Washington meant that all defendants were entitled to competent counsel.
Mitigating Circumstances
Slightly over fifty years ago, the United States Supreme Court decided in Furman v. Georgia that the death penalty statutes then in place led to the death sentence being imposed in an arbitrary and capricious manner. Four years later, after thirty-five states amended their death penalty statutes in response to Furman, the Supreme Court heard five cases dealing with the amended statutes. In three of the cases, the Court decided that statutes that channel the jury’s discretion to focus on the “particularized nature of the crime and the particularized characteristics of the individual defendant” and which require at least one statutory aggravating factor before the jury may impose death were constitutional. In two of the cases, the Court found that mandatory death sentences were unconstitutional.
While the Court noted the importance of mitigation in the five cases it decided in 1976, the Court did not expressly address mitigation until 1978, when it decided Lockett v. Ohio. In Lockett, the Court held that a sentencing judge or jury should not be prevented from considering as a mitigating factor “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”.
In the decades after the Court decided Lockett, it has explained more about the “potentially infinite mitigators” that should be admitted and that should be considered by the sentencing judge or jury. A sentencing judge may not refuse to consider any relevant mitigating evidence as a matter of law; mitigating evidence is relevant if it tends to prove or disprove “some fact or circumstance which a fact-finder could reasonably deem to have mitigating value”. Mitigating evidence need not relate specifically to the culpability of the defendant; indeed, mitigation does not require a nexus to the crime. For an attorney to be effective when representing a person accused of a capital offense, they must thoroughly investigate mitigation evidence. Presenting only some mitigation evidence may not be adequate.
Mitigation can quite literally be a matter of life or death. A 2022 article published in the Hofstra Law Review detailed over six hundred capital cases with serious aggravating circumstances where sentences judges or juries nonetheless chose to return a life verdict. These aggravating circumstances included child victims, law enforcement victims, and multiple victims. While the article recognizes that a variety of circumstances have led to the decline of the death penalty in the 21st century, it credits mitigation for the life sentences in the cases they collected. Outside of trial, mitigation evidence can result in plea deals or the prosecution declining to seek death. Mitigating evidence, presented effectively, can result in lives saved.