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Tennessee, Alabama, and Louisiana became the first states to use discretionary sentencing systems (Woodson, 428 U.S. at 291). Between the Civil War and the beginning of the twentieth century, twenty additional U.S. jurisdictions adopted discretionary sentencing in capital cases. In 1897, Congress also adopted a discretionary sentencing scheme for the federal death penalty. By 1963, the federal government and every state with a death penalty used the discretionary system.

This discretionary system created what appeared to be a fairer death penalty system, but there was another result that some legislators likely intended, at least in some jurisdictions. Giving jurors more discretion also allowed for improper considerations (Baldus, Woodworth, Pulaski, 1990). Thus, jurors were permitted to express racial prejudices in their disparate treatment of capital defendants based on the race of the defendants and the race of the victims (Banner, 2006). 

This discretionary system created other problems. When sentencers were given so much discretion, the results among different juries were inconsistent and arbitrary. And “these procedures left juries free to impose sentence based on whatever criteria they liked, without regard to their legitimacy or their relevance to the sentencing decision” (Equal Justice, supra note 12, at 9)

Eventually, in Furman v. Georgia, the U.S. Supreme Court held that such discretionary systems violated the Eighth and Fourteenth Amendments. While the Justices in the majority all wrote separate opinions and did not agree on a single reasoning, one theme that emerged from several of the opinions was a concern about the arbitrary and unpredictable results from such a system. For example, Justice Douglas found the discretionary capital sentencing system “pregnant with discrimination.”  Justice Stewart noted that such a system allowed the death penalty to be imposed “wantonly” and “freakishly.”

Several years later, the Court held that a mandatory death sentencing system also violates the Constitution (Woodson v. North Carolina, 428 U.S. 280, 301 (1976). By contrast, at the same time, in Gregg v. Georgia, the Court upheld a sentencing system that tried to forge a middle ground between automatic death sentences and discretionary sentences (428 U.S. 153, 207 (1976). Although the exact procedures varied by state ( Jurek v. Texas, 428 U.S. 262, 269 (1976), in general, this constitutional sentencing scheme provides sentencing jurors (or judges) with a list of guidelines, or aggravating factors, that make a defendant eligible for the death penalty. Also, a defendant’s attorney can introduce mitigating factors to argue for a sentence less than death. At the time of Gregg, it was unclear how far the constitutional command for mitigating factors reached, but the landmark decision of Lockett v. Ohio clarified that issue.

Do you think that aggravating & mitigating circumstances are unfair for determining sentencing? Do you feel that regardless of the circumstances that a set penalty should be set? 

Baldus, D., Woodworth, G., & Pulaski, Jr., C.,  EQUAL JUSTICE AND THE DEATH PENALTY 9 (1990) [hereinafter EQUAL JUSTICE].

 Banner, S. Traces of Slavery: Race and the Death Penalty in Historical Perspective, in FROM LYNCH MOBS TO THE KILLING STATE 100, 111 (Charles J. Ogletree Jr. and Austin Sarat ed., 2006)

Jurek v. Texas, 428 U.S. 262, 269 (1976) (discussing Texas’s capital sentencing procedure that requires jurors to answer three questions).

Woodson, 428 U.S. at 291.

428 U.S. 153, 207 (1976).

Woodson v. North Carolina, 428 U.S. 280, 289 (1976) (citing HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA 5-6, 27-28 (rev. ed. 1967)).