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Capital punishment, Death Penalty, Capital sentencing, Mercy and retributivism, Penalty phase in capital sentencing, Mercy in capital sentencing, Furman v. Georgia, Woodson v. North Carolina, Lockett v. Ohio, Future dangerousness, Barefoot v. Estelle


Criminal Law | Criminal Procedure


Our constitutional law of capital sentencing does not understand Shakespeare's "gentle rain from heaven." Mercy confuses and befuddles it. The jury that sentenced Albert Brown to death was instructed that "'mere ... sympathy"' should not play on its judgment. Brown claimed this instruction violated his Eighth Amendment rights, but the Supreme Court disagreed. Some five years later, Justice Scalia dissented when the Court reversed Derrick Morgan's death sentence. According to Justice Scalia, the Court had held that no "merciless" juror could sit in judgment of a capital defendant. The Constitution, he thought, demanded no such thing. These dissents, one embracing mercy and the other rejecting it, reflect a basic confusion about the role of mercy in Eighth Amendment jurisprudence. We lack an adequate account of what mercy is and how it fits into the existing scheme of capital sentencing. In short, the Court has no coherent understanding of mercy or its place in the structure of the penalty phase of a capital trial.

This Article proposes a new way to look at the penalty phase. It submits that the penalty phase should be reconstructed to incorporate and accommodate mercy, or at least that capital sentencing juries should be instructed, at the defendant's request, that mercy lies within their power to dispense. The discussion proceeds in three parts. Part I briefly reviews the constitutional history of the penalty phase. This is the history of a supposed paradox between the goals of consistency and individualization in capital sentencing. Our preoccupation with the paradox has diverted attention from other important dimensions of capital sentencing, one of which is the distinction between deserved punishment and mercy. Part II develops this distinction and demonstrates how the penalty phase can be restructured to incorporate mercy. Part III defends this new, mercy-inclusive approach to the penalty phase. It argues that failing to heed the distinction between desert and mercy needlessly increases the risk of wrongly condemning an undeserving defendant to death.