Tipping the Scales Toward Death: Why Some Aggravators Weigh More Than Others

• Published date: 01 March 2025
• DOI: http://doi.org/10.1177/07340168231169764
• Author: Matthew P. West,Logan A. Yelderman
• Date: 01 March 2025
• Subject Matter: Original Articles

Tipping the Scales Toward

Death: Why Some Aggravators

Weigh More Than Others

Matthew P. West

1

and Logan A. Yelderman

2

Abstract

At the sentencing phase of modern capital trials, the jury endorses and weighs aggravators against

mitigators to determine the appropriate sentence. We present a “dual process”theory of capital

sentencing decisions that might explain how and why certain aggravators “tip the scales”toward

a death sentence. Sentencing standards provide a rational framework for deciding whether a defen-

dant should live or die, but within this framework there is room for moral intuition, specif‌ically in

the weighing of aggravators and mitigators. Certain aggravators might trigger moral intuition and

emotion, and, in turn, justify a death sentence when there is substantial mitigation. We conduct

a case study of cases that resulted in a death sentence in Nevada, 1976–2016. Aggravators like sex-

ual assault, a child victim, and multiple murders were more likely to be endorsed in cases where

there were more, or an equal number of, mitigators and aggravators. We highlight particularly illus-

trative cases.

Keywords

death penalty, jury decision-making, moral intuition, aggravating and mitigating evidence, dual

process theory

In Furman v. Georgia (1972), Justice Stewart analogized death sentences to lightning strikes due to

unconstrained juror discretion—death sentences were rendered arbitrarily, and therefore were

“unusual”(Goldberg & Dershowitz, 1970). To address jurors’unbridled discretion, states adopted

sentencing guidelines that theoretically “circumscribe”death sentences (see Gregg v. Georgia,

1976;Jurek v. Texas, 1976;Proff‌itt v. Florida, 1976). Modern capital jurors essentially follow

these guidelines by endorsing and weighing specif‌ic types of evidence in making their sentencing

decision (see, e.g., Nevada Revised Statute [NRS] § 175.554). Four years after the Furman decision,

Justice Stewart, writing for the majority, cited these capital sentencing guidelines as the primary

1

Justice and Public Safety, Southern Illinois University Carbondale, Carbondale, IL, USA

2

Psychology, Prairie View A&M University, Prairie View, TX, USA

Corresponding Author:

Matthew P. West, Justice and Public Safety, Southern Illinois University Carbondale, Mail Code 4504, 1000 Faner Dr.,

Carbondale, IL 62901, USA.

Email: matthew.p.west@siu.edu

Original Article

Criminal Justice Review

2025, Vol. 50(1) 85-100

© 2023 Georgia State University

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/07340168231169764

journals.sagepub.com/home/cjr

reason that death sentences could no longer be “wantonly”and “freakishly”imposed (Gregg

v. Georgia, 1976).

It is important to understand capital sentencing decisions for several reasons. One reason is that

the death penalty’s constitutionality is largely contingent upon the process by which capital jurors (or

judges) render death sentences. Another reason is that, although capital sentencing is often consid-

ered exceptional and unique, it is to some degree a microcosm. The death penalty is an exceptional

punishment, but it is not the only exceptional punishment; the capital sentencing process could be

considered a special case of the sentencing process for exceptional penalties more generally. In

Vermont, for instance, a jury endorses and weighs the same type of evidence as they would in a

capital case to determine whether a defendant is eligible to receive a life sentence without the pos-

sibility of parole (LWOP; 13 Vermont Statutes Annotated § 2303). Similarly, factors that justify a

death sentence (e.g., the heinousness of the crime) can also justify an extended term sentence

(see, e.g., 730 Illinois Compile Statute § 5).

This paper presents a theoretical framework of capital sentencing that integrates jurisprudence,

theory, and empirical research. Our primary argument is that certain types of evidence that make

a defendant more deserving of a death sentence (i.e., aggravating circumstances or aggravators)

trigger moral intuition and emotion, and, in turn, capital jurors—and we suspect judges too—

justify a death sentence by assigning them more weight relative to evidence that makes a defendant

less deserving of a death sentence (i.e., mitigating circumstances or mitigators). We use the metaphor

of “tipping of the scales”because the argument is pertinent to cases in which there are more mitiga-

tors than aggravators endorsed or an equal number of aggravators and mitigators endorsed.

1

When

there are more aggravators than mitigators endorsed, we suggest the decision to render a sentence of

death largely resembles a syllogistic process. We conduct a case study and discuss implications of the

proposed theoretical framework.

The Modern Capital Trial and Its Antecedents

The history of the death penalty in the United States is one of ambivalence. On the one hand, most

citizens have exhibited supportive attitudes toward the death penalty, and, albeit with exceptions,

there has been at least one execution virtually every year since Jamestown was established

(Banner, 2002; Espy & Smykla, 2016; Gallup, 2022).

2

On the other hand, there has been a “narrow-

ing”of who can receive the death penalty (e.g., juveniles and people with intellectual disabilities;

Atkins v. Virginia, 2002;Roper v. Simmons, 2005), what someone can receive it for (e.g., rape;

Coker v. Georgia, 1977;Kennedy v. Louisiana, 2008), and how someone can receive a death sen-

tence (e.g., trial bifurcation; Gregg v. Georgia, 1976) and be executed (e.g., f‌iring squad,

hanging, and lethal injection; Baze v. Rees, 2008;In re Kemmler, 1890;Wilkerson v. Utah, 1879).

There has been a similar narrowing of who is qualif‌ied to serve as a capital juror (see Morgan

v. Illinois, 1992;Wainwright v. Witt, 1985;Witherspoon v. Illinois, 1968) and who is qualif‌ied to

endorse evidence that justif‌ies a death sentence (Hurst v. Florida, 2016;Ring v. Arizona, 2002).

One of the central issues that shaped the modern capital trial is jury discretion. Initially, the death

penalty was mandatory upon conviction, but juries were given sentencing discretion beginning

around the 19th century (Banner, 2002). Like statutes differentiating degrees of murder, giving

juries discretion was seen as a solution to the problem of jury nullif‌ication (Banner, 2002;

Knowlton, 1953). However, it introduced a new problem, the issue of standardless juries. In

McGautha v. California (1971), the constitutionality of standardless juries was challenged on 14th

Amendment grounds (i.e., due process). In McGautha’s trial, the jury was instructed that they

may consider “facts in aggravation and mitigation,”but that it was not essential and that they

were “free to act according to [their] own judgment, conscience, and absolute discretion”

(p. 402).

3

Writing for the majority, Justice Harlan wrote that the task of creating standards was

86 Criminal Justice Review 50(1)