William & Mary Bill of Rights Journal


Over twenty years ago, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. According to Jeffrey Kirchmeier, the "guided discretion" capital sentencing scheme of sentencing factors that has developed, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

Justices Scalia, Blackmun, and Thomas have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. Kirchmeier argues that today's sentencing scheme is arbitrary also because of undefined aggravating factors, unlimited nonstatutory aggravating factors, and victim impact evidence. According to Kirchmeier, the death penalty scheme also has moved toward a mandatory scheme as legislatures expand death penalty statutes and the Court sanctions other expansions of the application of the penalty. Thus, argues Kirchmeier, the paradox of the present system is that it is both arbitrary and mandatory.

Focusing on the Court's decisions regarding aggravating and mitigating factors, this Article discusses the arbitrary and mandatory aspects of the current system and then examines five options for addressing those constitutional problems: keeping the present system, narrowing the application of the death penalty, returning to unguided discretion statutes, returning to mandatory death penalty schemes, or, as Justices Blackmun and Powell have suggested, abandoning the death penalty.

This Article concludes that a mandatory death penalty scheme is the only way to potentially apply the death penalty in an evenhanded manner. The mandatory aspects of the current scheme and the historical experience with mandatory death penalty schemes, however, illustrate that no human system for selecting defendants for the ultimate punishment can be both fair and nonarbitrary.