Mitigation, Time, and the Immorality of Death
The death penalty is a widely contested form of punishment plaguing legal theorists, juries, and society as a whole today. Current death penalty jurisprudence in the United States, which developed as a reaction to the brief abolition of the death penalty following Furman v. Georgia in 1972, has created an arbitrary and immoral system that relies upon a balance between aggravating and mitigating factors. An aggravating factor is “any fact or circumstance that increases the severity or culpability of a criminal act,”  and a mitigating factor is “any fact or circumstance that lessens the severity or culpability of a criminal act.”  In capital cases, aggravating factors are almost always codified in statutes. Mitigating factors, while sometimes statutory, are often not codified.
The post-Furman modern death penalty system attempts to reconcile what Justice Blackmun, who shifted from favoring capital punishment to staunchly advocating for its abolition, believes to be fundamentally contradictory: individualized sentencing and non-arbitrary sentencing. Justice Blackmun’s cynicism towards these two conflicting goals has been proven correct through not only the arbitrariness of the jury, but also through the total reliance that mitigating evidence has on the moral standards of the time.
Furman v. Georgia held that the Eighth Amendment, which prohibits cruel and unusual punishment, required “legislatures to write penal laws that are ‘even-handed, non-selective, and non-arbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.’” As a result, all existing death penalty laws at the time were struck, and the United States was free from capital punishment until states began to rewrite their own laws to more closely comply with the holding in Furman.
Gregg v. Georgia, which was the first major death penalty case to come before the Court following Furman, held in 1976 that even though mitigating evidence was not required for sentence reduction, “[a jury] must find a statutory aggravating circumstance before recommending a sentence of death.” Gregg essentially provided a filter that limited the defendants who could potentially receive the death penalty to those with aggravating factors. Lockett v. Ohio in 1978 then held that all mitigating factors, defined as “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,” must be allowed under the Eighth and Fourteenth Amendments. Finally, Eddings v. Oklahoma determined that the sentencer — in most cases, jury members — must not only be exposed to whatever mitigating evidence the defense wants to proffer, but must also “consider, as a matter of law, any relevant mitigating evidence.” Thus, there now exists a bifurcated capital punishment system that requires all mitigating evidence to be permitted and considered as long as aggravating factors already exist.
In weighing aggravating factors against mitigating factors, the jury is aware that aggravating factors must be taken into account and mitigating factors must be considered, but has little guidance with how to judge whether or not the comparison between the two warrants a death penalty that is not cruel and unusual.  Thus, they are excessively exposed to their own preconceptions and inclinations.
A jury, especially a capital one, is influenced by a myriad of factors that can contribute to an arbitrary or antagonistic sentencing of the defendant. In a study at New York University, researchers found that white jurors, when compared to black jurors, were more likely to have felt anger toward the defendant, less likely to have imagined being in the defendant’s situation, and less likely to have found the defendant likeable as a person. White jurors, in simpler terms, appear less likely to empathize with capital defendants, and mitigating evidence is only useful if the sentencer is empathetic. Thus, non-statutory mitigating evidence has, on average, less impact on white jurors.
Unfortunately, in the states where the death penalty is most frequently enforced, white people, as well as those who are generally more pro-death penalty, are more likely to be chosen by voir dire, the jury selection process. “Many jurors who say they can ‘follow the law’ are in truth ADP [Automatic Death Penalty] jurors, and, unfortunately, the voir dire process itself often contributes to this perception,” the Cornell Jury Project stated. Other problems related to jury selection and jury psychology include jurors who have the preconception that all murder crimes deserve the death penalty, jurors who think that the voir dire process itself indicates a mandatory death sentence, and juries who believe that particularly heinous murders always warrant the death penalty.
Ironically, a system that sought to eliminate arbitrariness from the death penalty process introduces more of it.  Any decision that came after the establishment of aggravating factors could be completely dependent on the jury itself.
What is most terrifying, however, is not even the arbitrariness of the jury that determines if the death penalty should be imposed without violating the Eighth Amendment, which prohibits “cruel and unusual punishment.” It is that the question of mitigation appears to be determined not by law but by morals. As Justice O’Connor expressed in her opinion in California v. Brown, “the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.” It is a given that morals vary. They do not only vary from person to person, group to group, but also from era to era. Unlike differences between demographics or other factors that create preconceptions on the death penalty, morality is constantly changing, shifting, and, as Justice Warren holds rather optimistically, maturing.
If that is the case, then the most arbitrary aspect of mitigating evidence is its reliance on the morals of the jury, which in turn are reflective of the morals of the time. Thus, if one looks out at death row, one would see inmates who have been sentenced at different times, still alive solely based upon the endurance of their attorneys and the lengths of their appeals. Each individually condemned person was put there by a different system of morality. The morals under which the longest-serving inmate was sentenced may seem anachronistic compared to the newest inmate on the block.
The problem with mitigation is not just that it is arbitrary, but why it is arbitrary. It is clear now that its arbitrariness arises because mitigation is fundamentally a question of morality, which is inextricably tied up with time. Ironically, the problem that then reveals itself is not that death row inmates have too little time, but instead that they have too much. In 2010, a death row inmate waited an average of 15 years between sentencing and execution. As a death row inmate prepares himself at last for execution, he will know that the moral standards by which he was condemned are 15 years old; his death may very well not be upheld should it be reassessed by the morals of modern time. If the overall morality of society is indeed one that is maturing, then by the time that he dies, it could be an immoral death.
The two choices, then, are to either remove mitigating factors from sentencing or to decrease the amount of time between sentencing and execution. To remove mitigating factors, however, is directly contradictory to the concept of individualized sentencing, which, although not constitutionally protected, has been widely and historically accepted (see Williams v. New York).  Lockett v. Ohio established that the defense should have the opportunity to present all possible mitigating evidence, holding that “A statute that prevents the sentencer in capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to the circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty, and, when the choice is between life and death, such risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” P. 438 U. S. 605. The risk is as present as it was in 1978. To remove mitigating factors might remove some amount of arbitrariness, as Justice Scalia suggested in his concurring opinion for Callins v. Collins, but it will also peel back a layer of protection from wrongful death penalty sentencing (assuming that there is a thing as correct death penalty sentencing) that the legal system cannot afford. The high risk that someone would be wrongfully sentenced to death is why, to move on to the second possible solution, the time between sentencing and execution cannot be shortened.
There exists an argument that the death penalty is immoral because after the prisoner spends a number of years on death row, he is a different person at the time of execution. The state, in other words, would be executing a different man from the one that it had condemned. In "From Death Row to Rehabilitation and Redemption," defense attorney Jeffrey Colman argues how his death row client Antonio (pseudonym) made significant progress on death row when faced with a resentencing opportunity.  Correctional officers, family members, and former lawyers all testified to his “incredible transformation.” Antonio himself spoke at his own resentencing hearing, describing how he found people who supported him for the first time and changed his perceptions. At the end of the hearing, the judge re-sentenced him to the minimum possible sentence, 20 years with time served. Not every death row inmate, of course, gets the resentencing opportunity that Antonio did. If an inmate can change so drastically on death row, then how can it be moral to simply assume that prisoners will remain the same people that they were from the moment that they were condemned? Furthermore, how can it be assumed that society’s morals would remain the same?
It is, of course, difficult to predict the moral and ethical trajectories of each individual death row inmate. Regardless, the trajectory of a society’s moral change can be assessed. A particularly apt example is a Gallup poll performed by Amnesty International in May 2012, which showed that “only 58% of respondents find the death penalty morally acceptable, a 7% drop from last year and the lowest number since the morality question was first asked in 2001”.  Even if the juries’ moral decisions were not viewed as a reflection of the morals of the general society, and are purely reflective of the views of those twelve individuals, there is significant evidence that their moral decisions in the jury room will change, and change quickly. In a study by the Capital Jury Project, 81% of female and 18% of male jurors regretted their decisions in death penalty cases.  Jurors’ views on the death penalty are not the only factors that affect their decisions. As they listen to mitigating evidence and weigh it against the aggravating factors, there are no right or wrong answers, only that which they perceive to be right or wrong. Thus, if we know that over time, their morals will change as a reflection of how society’s morals change, is this not an even greater argument against sentencing someone to death than the eventual hope of prisoner’s redemption?
As a result, the question comes back to how to remove the question of time. Supporters of the death penalty have argued that it is the defense attorneys who purposefully drag appeals to buy their clients more time. In Justice Thomas’s concurrence in the denial of the writs of certiorari for Knight v. Florida and Moore v. Nebraska, he held that there was no precedent “for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.” In reality, however, the long appeals processes are necessary. It takes a long time to exhaust state direct review, state post-conviction appeal, and federal habeas corpus appeal processes, which are the processes available and usually taken by the defense in capital cases (provided that the defendant has adequate representation).
Professor James S. Liebman, a law professor at Columbia Law School, demonstrated that extraordinary amounts of errors in capital cases were found through the appeals process in “A Broken System: Error Rates in Capital Cases, 1973-1995.” For every 100 capital cases studied, “at least 68 of the original 100 were thrown out because of serious flaws, compared to only 32 (or fewer) that were found to have passed muster—after an average of 9-10 years had passed,” the paper established. In his follow-up study, Professor Liebman explained that this phenomenon existed partially due to a fear of crime that hinges on racist tendencies. In many places where errors were the highest, errors rose as there was more parity between white and black homicides, and where there were higher concentrations of African American residents. Higher rates of error also occur where there are more partisan judge elections because judges win more votes by being more inclined to apply the death penalty. Thus, these errors are driven by intangible tendencies of the communities they serve. These errors are, arguably, also driven by morals.
Thus, if mitigation cannot be removed from the equation, and neither can the lengthy review time required to minimize error, what can be changed? Morals would have to be removed from the equation. There must be a way to completely remove human morals in order to address this intrinsic problem with the death penalty. But even asking this question seems insincere because there can be no way to remove morals from the equation. Sentencers are asked in capital cases to consult their morals more often than they are in any other type of case because death and killing is, on its own, a matter of morals. It is impossible to remove morals from the question of death. Even in the logistics of capital punishment, morals throw a wrench in the procedures. In capital cases, the morality of the original murder and the morality of executing the murderer are entangled as mitigation is brought in. Ultimately, the question always comes back to whether the crime of murder is worth the death of the murderer. These morals are, as contrived or as superficial as it may seem, what make capital punishment uniquely beyond the capabilities of our legal system.
One may ask whether everything that we define as a crime is simply a matter of the morals of the time. Looking back, we had so many unjust laws that we would never imagine having today --- witch burnings, incrimination of homosexuality, exploitational labor laws (etc.) --- these would all appear immoral today. To prevent current laws from appearing immoral in the future, we could just play it safe -- perhaps get rid of all laws. To say that the immorality of the death penalty’s reliance on mitigating factors is a slippery slope to total lawlessness, however, is not only fantastical, but also overlooks one key fact. In any other crime, the defendants are convicted theoretically because they were found guilty of breaking a law. If the law is eventually deemed immoral within their lifetimes, they still have a chance to be exonerated. In the death penalty, however, the question of morality does not concern the law that determines whether or not the defendant is guilty, but rather the act of killing the murderer. It is difficult to imagine murder being legalized one day. It is law that puts defendants in jail, theoretically. But, it is a balance of morals that kills the defendant. And a change in morality can in no way be measured the same way as an overturned law. The only change in law that can stop the injustices in our death penalty system would be an end to the death penalty.
 “Aggravating Factor,” Cornell Legal Information Institute, https://www.law.cornell.edu/wex/aggravating_factor.
 “Mitigating Factor,” Cornell Legal Information Institute, https://www.law.cornell.edu/wex/mitigating_factor.
 Stephen P. Garvey, The Emotional Economy of Capital Sentencing, 75 N.Y.U. L. Rev. 26 (2000).
 Callins v. Collins, 510 U.S. 1141 (1994)
Williams v. New York, 337 U.S. at 337 U. S. 247-248; Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. at 302 U. S. 55.
 Colman, Jeffrey D. "From Death Row to Rehabilitation and Redemption," Litigation vol. 39, no. 3 (Summer 2013): p. 31-35. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/laba39&i=171.
 Newport, Frank. “Americans, Including Catholics, Say Birth Control Is Morally OK.” Gallup.com, 22 May 2012, news.gallup.com/poll/154799/Americans-Including-Catholics-Say-Birth-Control-Morally.aspx.
 Mitchell, Paula, et al. “The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners.” Justia Verdict Comments, 24 Oct. 2013, verdict.justia.com/2013/10/25/weight-capital-punishment-jurors-justices-governors-executioners.