Chapter 301

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301.4 Death Penalty: Mitigation

301.4.2 Death Penalty: Specific Mitigation

    301.4.2.1 Death Penalty: Sympathy As Mitigation
    301.4.2.2 Death Penalty: Post-Traumatic Stress Disorder As Mitigation
    301.4.2.3 Death Penalty: Miscellaneous Mitigating Factors

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301.4.2.1 Death Penalty: Sympathy As Mitigation

PRACTICE NOTE: See Capital Punishment Handbook [4.5.3 Sympathy And Passion] and [4.8.3.3. Sympathy And Passion].

RESEARCH NOTES:

See Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.3a. Sympathy And Passion: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.3.3a. Sympathy And Passion: General Principles And Authorities].

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301.4.2.2 Death Penalty: Post Traumatic Stress Disorder As Mitigation

See NCJIC 256.7.3.18 [Post Traumatic Stress Disorder (PTSD)].

RESEARCH NOTES:

Debra D. Burke & Mary A. Nixon, Post-Traumatic Stress Disorder and the Death Penalty, 38 HOW. L.J. 183 (1994) [discussing post-traumatic stress disorder and proposing how it may be viewed as mitigating circumstance].

See Capital Punishment Handbook [1.13.2.3a. Failure To Present Mitigating Evidence At Sentencing: General Principles And Authorities].

See Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

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301.4.2.3 Death Penalty: Miscellaneous Mitigating Factors

PRACTICE NOTE:

Minimal Participation in Crime. See NCJIC 303.6 [Death Penalty: Consideration Of Defendant’s Individual Characteristics As Mitigation Notwithstanding Any Evidence Of Guilt].

Youth/Family History. Johnson v. Texas (1993) 509 US 350, 367-373 [113 SCt 2368; 125 LEd2d 290] [holding Texas special issues allowed adequate consideration of defendant’s youth because ample room in future dangerousness assessment for juror to take into account youth as mitigating factor]; Eddings v. Oklahoma (1982) 455 US 104, 114-17 [102 SCt 869; 71 LEd2d 1] [holding sentencing court’s refusal to consider defendant’s difficult family history as mitigating factor violates Lockett]; White v. Collins (5th Cir. 1992) 959 F2d 1319, 1324 [holding jury was not precluded from considering mitigating effect of defendant’s youth under Texas’ special issues]; Wilkerson v. Collins (5th Cir. 1992) 950 F2d 1054, 1601 [no need for special mitigating instruction on youth of offender or acceptance of responsibility for the murder]; Drew v. Collins (5th Cir. 1992) 964 F2d 411, 420 [holding jury not precluded from giving full mitigating effect to evidence of defendant’s troubled childhood, his drinking problem, and fact that he had consumed drugs and alcohol at time of offense]; Black v. Collins (5th Cir. 1992) 962 F2d 394, 404 [holding jury not precluded from considering mitigating effect of defendant’s youth under Texas’ sentencing scheme].)

Good Prison Behavior/ Potential for Rehabilitation. Truesdale v. Aiken (1987) 480 US 527 [107 SCt 1394; 94 LEd2d 539] [holding Skipper fully retroactive]; Skipper v. South Carolina (1986) 476 US 1, 2-8 [106 SCt 1669; 90 LEd2d 1] [holding evidence that defendant has adjusted well to incarceration is relevant mitigation evidence, and exclusion violates Lockett]; McClain v. Calderon (CA 1998) 134 F3d 1383, 1386 (conc. opn.) [holding trial judge should have allowed defense attorneys to introduce psychological evidence to support claim that defendant would not be threat to prison employees if sentenced to life].

Mental Retardation. Penry v. Lynaugh (1989) 492 US 302, 320 [109 SCt 2934; 106 LEd2d 256] [holding mental retardation may be considered mitigating factor]; Harris v. Pulley (9th Cir. 1988) 885 F2d 1354, 1383 [holding, while Zant suggests mental illness may be mitigating, evidence regarding petitioner’s personality disorder need not be identified as mitigating].

Lack of Significant Prior Criminal Activity/Violence. Delo v. Lashley (1993) 507 US 272, 276-79 [113 SCt 1222; 122 LEd2d 620] [involving mitigating factor of lack of prior criminal activity]; Hitchcock v. Dugger (1987) 481 US 393, 398 [107 SCt 1821; 95 LEd2d 347] [involving lack of prior criminal activity as mitigating factor].

Coercion. Glass v. Butler (5th Cir. 1987) 820 F2d 112, 114 [holding, on facts of case, "coercion" could be considered mitigating factor].

Good Character. Jernigan v. Collins (5th Cir. 1992) 980 F2d 292, 295 [holding Texas sentencing statute did not prevent jury from giving mitigating effect to petitioner’s evidence of good character].

"Catch All." Campbell v. Kincheloe (9th Cir. 1987) 829 F2d 1453, 1464 [holding Washington statute’s sentencing factor permitting consideration of "any relevant factors" was properly limited by state courts to mitigating factors].

Reliable Hearsay Evidence. Green v. Georgia (1979) 442 US 95, 97 [99 SCt 2150; 60 LEd2d 738] [holding exclusion of evidence at sentencing phase based on state hearsay rule is unconstitutional].

Polygraph Evidence. Grisby v. Blodgett (9th Cir. 1997) 130 F3d 365, 370 [holding that Court need not determine whether exclusion of polygraph evidence was error, since there was no showing of substantial or injurious effect].

RESEARCH NOTES:

See Capital Punishment Handbook [1.13.2.3a. Failure To Present Mitigating Evidence At Sentencing: General Principles And Authorities].

See Capital Punishment Handbook [4.4.3a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.5.2a. Role Of Aggravating And Mitigating Circumstances: General Principles And Authorities].

See also Capital Punishment Handbook [4.8.2.3a. Good Prison Behavior/Potential For Rehabilitation: Authorities].

See also Capital Punishment Handbook [4.8.2.5a. Lack Of Significant Prior Criminal Activity/Violence: Authorities].

See also Capital Punishment Handbook [4.8.2.6a. Coercion: Authorities].

See also Capital Punishment Handbook [4.8.2.7a. Good Character: Authorities].

See also Capital Punishment Handbook [4.8.2.8a. "Catch All": Authorities].