Aggravating and Mitigating Evidence

Authored by: Carol S. Steiker , Jordan M. Steiker

Routledge Handbook on Capital Punishment

Print publication date:  December  2017
Online publication date:  December  2017

Print ISBN: 9781138651579
eBook ISBN: 9781315624723
Adobe ISBN:


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By the late 1960s, the American death penalty was in significant decline. Prevailing capital statutes were notoriously rudimentary. They allowed (but did not require) the imposition of the death penalty for murder (and in some states for lesser offenses such as robbery, kidnapping, or rape). The decision whether to impose death was left entirely to the jury. Ohio’s sentencing instructions were typical in this regard, advising the jury that “the punishment is death unless you recommend mercy, in which event the punishment is imprisonment in the penitentiary during life” ( McGautha v. California, 1971, p. 194). In the vast majority of jurisdictions, juries were asked to decide guilt and punishment at the same time, with most evidence and attention focused on whether the defendant had committed the offense rather than the appropriate punishment to be imposed.

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