Can All Murders be Aggravated: A Look at Aggravating Factor Capital-Eligibility Schemes
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CAN ALL MURDERS BE AGGRAVATED? A LOOK AT
AGGRAVATING FACTOR CAPITAL-ELIGIBILITY SCHEMES
I. INTRODUCTION
According to the Supreme Court, a constitutional capital sentencing scheme
must provide a way to genuinely narrow the class of those eligible for the
death penalty and must reasonably justify imposing a more severe sentence
compared to others found guilty of murder.' This stems from the Court's
decision in Furman v. Georgia that a death sentence was unconstitutional when
it was applied only to a capriciously selected random handful upon whom the
sentence of death has in fact been imposed.2 Death sentences are to be reserved
for the worst of the worst offenders (i.e. only those most deserving of
execution).3 States are therefore required to define death-eligible crimes in a way
that avoids standardless [sentencing] discretion.' In order to keep their capital
sentencing schemes constitutional, states have adopted systems of aggravating
and mitigating factors which are designed to ensure that death sentences are
actually imposed on only the most deserving of offenders.5 This means that if
a State wishes to authorize capital punishment it has a constitutional
responsibility to tailor and apply its law in a manner that avoids the arbitrary and
capricious infliction of the death penalty.6
While the Supreme Court has previously approved of this framework,
systems of aggravating factors have created new problems. Previously, the
Supreme Court has held that a sentencing scheme is unconstitutional if an
individual aggravating factor is overbroad or vague.7 Overbroad or vague factors
are problematic because, due to their vagueness or breadth, it is possible that
nearly all murders could fall within their grasp. Therefore, they cannot serve to
1. Zant v. Stephens, 462 U.S. 862, 876-77 (1983).
2. Furman v. Georgia, 408 U.S. 238, 309-10 (1972) (Stewart, J., concurring).
3. Kansas v. Marsh, 548 U.S. 163, 206 (2006) (Souter, J., dissenting) ([W]ithin the category
of capital crimes, the death penalty must be reserved for 'the worst of the worst.'). See also Roper
v. Simmons, 543 U.S. 551, 568 (2005); Atkins v. Virginia 536 U.S. 304, 319 (2002) (Thus,
pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of
execution are put to death, an exclusion for the mentally retarded is appropriate.).
4. Godfrey v. Georgia, 446 U.S. 420, 428 (1980).
5. See Jurek v. Texas, 428 U.S. 262 (1976); Gregg v. Georgia 428 U.S. 153 (1976).
6. Godfrey, 446 U.S. at 428.
7. Id. (finding that a statutory aggravating factor showing that a murder was outrageously
or wantonly vile, horrible and inhuman did not restrain arbitrary and capricious imposition of the
death penalty).
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Can All Murders be Aggravated: A Look at Aggravating Factor Capital-Eligibility Schemes
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