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301.5 Death Penalty: Sentencer's Evaluation Of Mitigation And Aggravation

    301.5.1 Death Penalty: The Sentencing Decision Must Be A Reasoned, Moral Response
    301.5.2 Death Penalty: Jury Must Consider The Mix Of Factors
    301.5.3 Death Penalty: Aggravation Does Not Need To Outweigh Mitigation Beyond A Reasonable Doubt
    301.5.4 Mitigation And Aggravation Must Be Defined
    301.5.5 Death Penalty: Life Verdict Permissible Even If Aggravating Factor Is Found
    301.5.6 Burden Of Persuasion
    301.5.7 Death Penalty: Weighing Or Nonweighing
    301.5.8 Death Penalty: Imposition Of Sentence Under Impermissible Standard As Implicating The 8th Amendment

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PRACTICE NOTE: "'[T]he sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.' [Citation.]" (Penry v. Lynaugh (1989) 492 US 302, 319, 328 [109 SCt 2934; 106 LEd2d 256] [Emphasis added]; 8th & 14th Amendments.)

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PRACTICE NOTE: It is "well established" that the 8th Amendment requires "individualized sentencing determinations in death penalty cases." (Stringer v. Black (1992) 503 US 222, 230 [112 SCt 1130; 117 LEd2d 367]; Clemons v. Mississippi (1990) 494 US 738, 753 [110 SCt 1441; 108 LEd2d 725]; Penry v. Lynaugh (1989) 492 US 302, 317 [109 SCt 2934; 106 LEd2d 256]; 8th & 14th Amendments.)

    Individualized sentencing requires the jury to weigh "'the mix of mitigating and aggravating factors.'" (Sochor v. Florida (1992) 504 US 527, 532 [112 SCt 2114; 119 LEd2d 326] [quoting Clemons v. Mississippi (1990) 494 US 738, 752 [110 SCt 1441; 108 LEd2d 725]]; 8th & 14th Amendments.)

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PRACTICE NOTE: See Capital Punishment Handbook [4.5.2. Role Of Aggravating And Mitigating Circumstances].

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PRACTICE NOTE: See Cunningham v. Zant (11th Cir. 1991) 928 F2d 1006, 1012 [jury instruction inadequate where jury instructed to consider mitigating or extenuating circumstances, but no definition of those terms was provided and jury not instructed that it could recommend life even if it found an aggravating circumstance]; Peek v. Kemp (11th Cir. 1986) 784 F2d 1479, 1486-94 (en banc) [discussing need to adequately inform jury of role of mitigating and aggravating circumstances].

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RATIONALE: Without an explanatory instruction the jurors may improperly assume that a death verdict must be returned if aggravating factors are found.

POINTS AND AUTHORITIES: The 8th Amendment requires that the jury be free to return a verdict of life even if aggravating factors have been found. (See Cunningham v. Zant (11th Cir. 1991) 928 F2d 1006, 1012 [holding jury instruction inadequate where jury instructed to consider mitigating or extenuating circumstances, but no definition of those terms was provided and jury not instructed that it could recommend life even if it found an aggravating circumstance]; see also Jackson v. Dugger (11th Cir. 1988) 837 F2d 1469, 1473 [instruction that "when one or more of the aggravating circumstances are found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances provided" undercut the individualized sentencing determination required by the 8th Amendment]; Moore v. Kemp (11th Cir. 1987) 809 F2d 702, 733 (en banc) [resentencing required where jury instructed that if an aggravating circumstance was found "the form of your verdict would be . . . death"].) The risk of juror misunderstanding may be reduced by specifically instructing the jury that even if aggravating circumstances are found, they may be outweighed by the mitigating factors. (See People v. Sanders (CA 1995) 11 C4th 475, 557 [46 CR2d 751]; see also State v. Rhines (SD 1996) 548 NW2d 415, 443 [court properly instructed the jury that it could impose a penalty of life imprisonment even if it found the existence of one or more statutory aggravating circumstances, explaining that a life sentence could be imposed for any or no reason].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.12].

CAVEAT: The jury should not be given the impression that it is necessary to find any mitigating factors at all. (See NCJIC 303.4.4 [Death Penalty: Scope Of Mitigation -- No Mitigation Necessary To Reject Death].)

STRATEGY NOTE: If such a request is rejected, at a minimum, counsel should be permitted to explain during argument that there is no specific instruction on this point because it is considered to be included in the general weighing instruction. (See NCJIC 272.3 [Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions] [counsel's argument that a specific rule is included in a general instruction].)

    See also NCJIC 303.3.7 [Death Penalty: Jury May Return Verdict Of Life Even If Aggravation Outweighs Mitigation].)

See Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

    You may set the penalty to be imposed at life imprisonment.

    It is not required, and it is not necessary, that you find any extenuating or mitigating fact or circumstance in order for you to return a verdict setting the penalty to be imposed at life imprisonment. Whether or not you find any extenuating or mitigating facts or circumstances, you are authorized to fix the penalty in this case at life imprisonment.

    If you find from the evidence, beyond a reasonable doubt, the existence in this case of one or more statutory aggravating circumstances as given you in charge by the court, then you would be authorized to recommend the imposition of a sentence of life imprisonment without parole, or a sentence of death, but you would not be required to do so.

    If you should find from the evidence in this case, beyond a reasonable doubt, the existence of one or more statutory aggravating circumstances as given you in charge by the court, you would also be authorized to sentence the defendant to life imprisonment.

    You may fix the penalty at life imprisonment, if you see fit to do so, for any reason satisfactory to you, or without any reason.

[Source: GEORGIA SUGGESTED PATTERN JURY INSTRUCTIONS - CRIMINAL CASES 13(d) [Death Penalty Charge: May Fix Penalty At Life Imprisonment For Any Reason ] p. 88 (Carl Vinson Institute of Government, University of Georgia, 2nd ed. 2000); see also SOUTH DAKOTA PATTERN JURY INSTRUCTIONS - CRIMINAL, SDCL 1-22-6 [Capital Punishment-Jury May Fix Penalty At Life Imprisonment For Any Reason] 1996 Ed (State Bar of South Dakota, 2000).]

    In weighing the aggravating and mitigating factors, you are not merely to count numbers on either side. You are instructed, rather, to weigh and consider the factors. You may return a verdict of life imprisonment without possibility of parole even though you should find the presence of one or more aggravating circumstances.

[Source: NCJIC.]

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PRACTICE NOTE: See Capital Punishment Handbook [4.8.4. Burden Of Persuasion].

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PRACTICE NOTE: See Capital Punishment Handbook [4.9.1. Weighing Or Nonweighing By Sentencing Body].

See Capital Punishment Handbook [4.9.1a. Weighing Or Nonweighing By Sentencing Body: General Principles And Authorities].

PRACTICE NOTE:   See Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 961 [bare language instruction was constitutionally erroneous as it allowed the defendant to be sentenced under a legally impermissible standard].