William & Mary Bill of Rights Journal


Since 1976, the U.S. Supreme Court has required that death penalty regimes meet two requirements. First, in order to minimize arbitrariness in the imposition of the death penalty, states must reserve capital punishment to a narrow class of offenders, those most deserving of death. States have done so by requiring that the prosecution prove at least one aggravating factor, i.e., some circumstance that separates the capital defendant on trial from those ineligible to be executed. Second, states must allow for individualization in sentencing by permitting the defendant to introduce mitigating evidence in order to persuade the jury that he is undeserving of death. The outcome has been that the penalty phase of the typical capital trial results in a flood of information from both prosecution and defense, much of it having little to do with the crime itself, through which the jury must wade. Whatever else may be said about our current death penalty jurisprudence, this flood of aggravating and mitigating evidence implicates the potential for information overload on the part of the capital jury. The concept of information overloadessentially, that too much information presented to a decision maker can result in sub-optimal decision making-has been widely explored in the marketing area. A few scholars have written on the potential impact of this phenomenon on consumer law and securities regulation. But until now, none has written on the potential impact of information overload on the capital jury. The sheer amount of information presented at the penalty phase of a capital trial likely exceeds many jurors' capacities to process that information. In addition, the novelty, complexity, ambiguity, and intensity of the decision to be made virtually assure that a significant number of capital jurors experience information overload. Jurors under such a constraint face two choices. First, they may "satisfice," or reach a decision that is sub-optimal simply to end the decision-making process. Second, they may "opt out," or abdicate their decision-making responsibilities to the otherjurors. Neither result is acceptable in the capital context. In order to ease the potential effects of information overload, death penalty jurisdictions, with the approval of the Supreme Court, should reduce the amount of information presented at the penalty phase of capital trials. One logical way of doing this is to limit aggravating and mitigating circumstances at the penalty-selection stage to those that reflect on the individual culpability of the offender for the crime of conviction. This would mean doing away with victim impact evidence, evidence of future dangerousness, and all other non-culpability related aggravating evidence. This limitation would also require a loosening of the current strictures the Supreme Court currently places on the states' ability to limit the defendant's presentation of mitigating evidence. States should be permitted to limit the defendant's introduction of mitigating evidence to that which reflects on his culpability for the crime, broadly conceived, and the states should exercise that authority.

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