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The failure of mitigation?

Version 2 2024-06-17, 23:56
Version 1 2017-04-10, 15:15
journal contribution
posted on 2024-06-17, 23:56 authored by RJ Smith, S Cull, Z Robinson
A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America. Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders. Though only a first step, our findings suggest the failure of the Supreme Court's mitigation project to ensure the only offenders subjected to a death sentence are those with "a consciousness materially more depraved" than that of the typical murderer. Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rivaland perhaps outpace-those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility.

History

Journal

Hastings Law Journal

Volume

65

Pagination

1221-1256

Location

United States

ISSN

0017-8322

Language

eng

Publication classification

C1.1 Refereed article in a scholarly journal

Copyright notice

University of California, Hastings College of the Law 2014

Issue

5

Publisher

University of California, Hastings College of the Law

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