Benefits and Risks of Using “Diminished Capacity” Mitigation in Death Penalty Proceedings

• DOI: https://doi.org/10.1016/S0196-1152(05)12006-7
• Published date: 08 August 2005
• Pages: 111-134
• Date: 08 August 2005
• Author: Beth Bjerregaard,M. Dwayne Smith,Sondra J. Fogel

BENEFITS AND RISKS OF USING

‘‘DIMINISHED CAPACITY’’

MITIGATION IN DEATH

PENALTY PROCEEDINGS

Beth Bjerregaard, M. Dwayne Smith and

Sondra J. Fogel

ABSTRACT

A sample of capital trials in North Carolina was analyzed to determine

the impact on death sentencing of introducing mitigators related to di-

minished capacity on behalf of defendants. The results show that mitiga-

tors of this type were frequently submitted to the jury for consideration,

and if accepted, the chances of a defendant being sentenced to death were

diminished. However, when these mitigators were submitted but not ac-

cepted, the defendant’s likelihood of receiving a death sentence was sub-

stantially escalated. These findings suggest a need for attorneys to

carefully weigh the advantages and disadvantages of presenting dimin-

ished capacity mitigators in capital trials, and if choosing to do so, the

absolute necessity of convincing the jury of their validity.

The Organizational Response to Persons with Mental Illness Involved with the Criminal Justice

System

Research in Social Problems and Public Policy, Volume 12, 111–134

Copyright r2005 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 0196-1152/doi:10.1016/S0196-1152(05)12006-7

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BENEFITS AND RISKS OF USING ‘‘DIMINISHED

CAPACITY’’ MITIGATION IN DEATH

PENALTY PROCEEDINGS

The death penalty has suffered a long and tumultuous history in the United

States and has undergone numerous iterations to arrive at its current for-

mat. Although the U.S. Supreme Court (hereafter, Court) struck down

death penalty statutes across the country in its landmark Furman v. Georgia

decision in 1972, the Court clearly articulated that it was not the punishment

itself, but the application of the statutes, especially their arbitrary and dis-

criminatory enforcement, that was being held unconstitutional. Therefore,

immediately following the Court’s decision, a number of states rapidly re-

drafted their death penalty statutes in an attempt to correct the deficiencies

objected to by the court.

Mitigation and Contemporary Capital Punishment

In 1976, the Supreme Court upheld the states of Georgia (Gregg v. Georgia,

1976), Texas (Jurek v. Texas,1976), and Florida’s (Profitt v. Florida,1976)

newly enacted death penalty statutes. In the lead case, the Court approved a

number of key factors incorporated into the Georgia statute that were sup-

posed to guide the sentencing process and, in so doing, significantly reduced

its arbitrary and capricious aspects.Included in the newly revised statuteswas

the requirement that the defendant be provided the opportunity to present to

the jury any information that might mitigate his or her responsibility for the

crime, thereby potentially lessening the punishment. Juries were then required

to balance these mitigating factors against statutory aggravating factors

(aspects of the case that made it subject to capital punishment) to arrive at an

appropriate punishment. The Court felt that this new sentencing scheme

would focus the jury’s attention on the unique characteristics of both the

crime itself and the characteristics of the defendant, therefore guiding sen-

tencing discretion. To further emphasize this point, the Court ruled on the

same day in two other cases that mandatory death penalty laws were un-

constitutionalbecause they did not allow a jury to consider the unique aspects

of each case that make for individual sentencing decisions (Roberts v.

Louisiana,1976;Woodson v. North Carolina,1976).

While most states ultimately adopted sentencing schemes either identical or

very similar to those of Georgia, two states chose to take a different ap-

proach, and had their schemes upheld by the Court. Both Texas and Oregon

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