Topic:
CAPITAL PUNISHMENT; JURIES; JUDGES; SENTENCING;
Location:
CAPITAL PUNISHMENT;
Scope:
Court Cases; Federal laws/regulations; Other States laws/regulations; Connecticut laws/regulations;

OLR Research Report


May 22, 2001

 

2001-R-0488

WEIGHING AGGRAVATING AND MITIGATING CIRCUMSTANCES

 

By: Christopher Reinhart, Associate Attorney

You asked about death penalty sentencing hearings in other states and how the judges or juries weigh aggravating and mitigating circumstances in connection with these hearings.

SUMMARY

After a person is convicted of a capital offense, courts must hold a separate sentencing hearing to determine if it is appropriate to impose a death sentence. Most states are similar to Connecticut and require the judge or jury to consider aggravating circumstances that support a death sentence and circumstances that mitigate against it.

In Connecticut, the jury or judge must consider whether aggravating factors specified by statute exist in the case they are deciding. Caselaw requires the state to prove these factors beyond a reasonable doubt (State v. Cobb, 251 Conn. 285 (1999)). Statutes in 25 states and both federal death penalty laws require the prosecution to establish an aggravating circumstance beyond a reasonable doubt. Other states may require it under their caselaw.

In Connecticut, the jury or court must determine if a particular factor concerning the defendant's character, background, or history or the nature and circumstances of the crime is established by the evidence and then determine whether it is mitigating, considering all the facts and circumstances of the case. Mitigating factors are not defenses or excuses for the capital felony of which the defendant was convicted but are factors that, in fairness and mercy, tend either to extenuate or reduce the defendant's blame for the offense or otherwise provide a reason for a sentence less than death (CGS 53a-46a). Caselaw requires the defendant to prove a mitigating factor by a preponderance of the evidence (Cobb).

Five state statutes (Maryland, New Hampshire, New York, Pennsylvania, and Wyoming) and both federal death penalty statutes specify that mitigating circumstances must be proven by a preponderance of the evidence. In Alabama, when the factual existence of a mitigating circumstance is in dispute, the defendant must present competent evidence on the mitigating circumstance but the state must disprove it by a preponderance of the evidence. In New Jersey, the defendant must produce evidence of the mitigating circumstance but he does not have the burden of establishing it. In Ohio, the defendant has the burden of going forward. In some states (like New Hampshire and New York) and both federal death penalty laws, an individual juror can determine whether a mitigating circumstance exists and can consider it regardless of how many other jurors believe it is established. Colorado's statute specifies that there is no burden to prove or disprove a mitigating circumstance.

Under Connecticut law, if the jury finds that mitigating factors outweigh the aggravating factors or are of equal weight, the court must sentence the defendant to life imprisonment without the possibility of release. If the aggravating factors outweigh mitigating factors, the sentence is death (CGS 53a-46a).

14 of the 37 other death penalty states also limit the death penalty to cases where the jury finds that aggravating circumstances outweigh mitigating circumstances. Eight of these specify in statute a burden of proof the state must meet to show that the aggravating circumstances outweigh mitigating ones.

In New Hampshire and both federal death penalty statutes, aggravating circumstances must sufficiently outweigh mitigating circumstances. In 11 other states, juries must consider the sufficiency of aggravating and mitigating circumstances when deciding whether to impose the death penalty. In eight states, the jury must find at least one aggravating circumstance and consider mitigating circumstances when deciding whether to impose the death penalty. Three states use a different structure for their sentencing hearings.

We did not find any state that requires finding and weighing mitigating evidence and weighing aggravating and mitigating circumstances in precisely the way Connecticut does. A number of state statutes set burdens of proof required to establish an aggravating or mitigating circumstances and also set burdens of proof to establish that aggravating circumstances outweigh mitigating circumstances.

ESTABLISHING AGGRAVATING CIRCUMSTANCES

Statutes in 25 states and both federal death penalty laws require the prosecution to establish an aggravating circumstance beyond a reasonable doubt. The table below shows these states. Others states may require it under their caselaw. Some statutes specify that the jury must unanimously agree that the aggravating circumstance exists.

State Statutes Requiring Proof of Aggravating Circumstances

Beyond a Reasonable Doubt*

Alabama

Indiana

New Hampshire

South Carolina

Arkansas

Kansas

New Jersey

South Dakota

Colorado

Kentucky

New Mexico

Tennessee

Delaware

Louisiana

New York

Wyoming

Georgia

Maryland

North Carolina

 

Idaho

Mississippi

Ohio

 

Illinois

Missouri

Pennsylvania

 

*also federal death penalty statutes

In Nebraska, the facts that the aggravating factor depends on must be proven beyond a reasonable doubt.

WEIGHING IN SENTENCING HEARINGS IN OTHER STATES

Most states require the jury or judge to find the existence of an aggravating circumstance before imposing the death penalty. All states require consideration of mitigating evidence and most states require the jury or judge to weigh aggravating circumstances against mitigating circumstances.

In five states (Alabama, Delaware, Florida, Indiana, and Ohio), the jury's decision is only a recommendation to the court and the judge must also weigh the circumstances to determine that a death sentence is appropriate. In Kansas, the judge reviews the jury's decision to see if it is supported by the evidence and South Carolina requires the judge to determine if the death penalty is warranted by the evidence and not the result of prejudice, passion, or an arbitrary factor.

Alabama's statute specifies that the weighing process is not a mere tallying of circumstances for numerical comparison but is “a process by which circumstances relevant to sentence are marshaled and considered in an organized fashion for the purpose of determining whether the proper sentence in view of all the relevant circumstances in an individual case is life imprisonment without parole or death.” Wyoming's statute states that the mere number of aggravating or mitigating circumstances has no independent significance.

The weighing processes used by other states vary but they can be divided into several categories.

Aggravating Outweighs Mitigating By a Preponderance

Two state statutes (Delaware and Maryland) require the jury to find that aggravating circumstances outweigh mitigating ones by a preponderance of the evidence.

Aggravating Outweighs Mitigating Beyond a Reasonable Doubt

Under six state statutes (Arkansas, New Jersey, New York, Ohio, Tennessee, and Utah), the jury must find that aggravating circumstances outweigh mitigating ones beyond a reasonable doubt. In New York, the aggravating circumstances must substantially outweigh mitigating ones beyond a reasonable doubt. Arkansas adds that the jury must also determine that the circumstances justify a death sentence beyond a reasonable doubt. In Utah, the jury must also decide, beyond a reasonable doubt, that death is justified and appropriate in the circumstances.

Sufficiency of Aggravating or Mitigating Circumstances

Under the New Hampshire statute and both federal death penalty statutes, the aggravating circumstances must sufficiently outweigh mitigating circumstances. In Florida, the jury must determine (1) whether sufficient aggravating circumstances exist, (2) whether sufficient mitigating circumstances exist that outweigh aggravating ones, and (3) based on these considerations whether to impose death or life imprisonment. In North Carolina, the jury must find that the aggravating circumstance or circumstances are sufficiently substantial to call for death, and that mitigating circumstances are insufficient to outweigh the aggravating.

Seven other states require the jury to consider whether mitigating circumstances call for a sentence other than the death penalty.

1. In Arizona, the jury can impose a death sentence if it finds at least one aggravating circumstance and no mitigating circumstances “sufficiently substantial to call for leniency.”

2. In Colorado, a three judge panel must determine if at least one aggravating factor exists, whether sufficient mitigating factors exist to outweigh the aggravating ones, and based on these considerations whether to impose a death sentence.

3. In Idaho, if the jury finds at least one aggravating circumstance it must sentence the defendant to death unless mitigating circumstances are sufficiently compelling that imposing the death penalty would be unjust.

4. In Illinois, to impose the death penalty, the jury must find at least one aggravating factor and that no mitigating factors are sufficient to preclude imposing a death sentence.

5. In Mississippi, the jury must determine whether (a) sufficient factors show that the defendant actually killed, attempted to or intended to kill, or contemplated use of lethal force, (b) sufficient aggravating circumstances exist, and (c) there are insufficient mitigating circumstances to outweigh the aggravating ones.

6. In Montana, the jury must find an aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency.

7. In Washington, the jury must determine beyond a reasonable doubt that mitigating circumstances are insufficient to merit leniency in order to impose the death penalty.

Nebraska's statute is slightly different. The jury must decide whether (1) sufficient aggravating circumstances justify death, (2) sufficient mitigating circumstances exist that approach or exceed the weight given the aggravating circumstances, and (3) death is excessive or disproportionate compared to the penalty in similar cases considering the crime and the defendant. The statute states that it is the legislature's intent to impose the death penalty only when aggravating circumstances outweigh mitigating ones.

In Nevada, the jury must find an aggravating circumstance, no mitigating circumstances sufficient to outweigh the aggravating ones, and it decide whether to impose the death penalty.

Finding at Least One Aggravating Circumstance

In six states (Georgia, Kentucky, Missouri, South Carolina, South Dakota, and Wyoming), the jury cannot impose the death penalty unless it finds at least one aggravating circumstance beyond a reasonable doubt. The jury must consider mitigating evidence but the statute does not specify weighing.

In New Mexico, the jury must find at least one aggravating circumstance beyond a reasonable doubt to impose the death penalty. It must weigh aggravating and mitigating circumstances, weigh them against each other, consider both the defendant and the crime, and determine whether it should impose death. But on review to the state supreme court, the court must overturn a death sentence if mitigating circumstances outweigh aggravating ones.

In Louisiana, the jury must find at least one aggravating circumstance beyond a reasonable doubt and after considering mitigating circumstances, determine that death should be imposed. The sentencing hearing focuses on the circumstances of the offense, character and propensities of the offender and the victim, and the impact of the victim's death on family, friends, and associates.

Different Sentencing Structures

Three states structure their sentencing hearings and require consideration of mitigating evidence in a different way.

1. In Oregon, the jury must consider (1) if the defendant acted deliberately and with reasonable expectation of causing death, (2) whether there is a probability that the defendant would commit violent criminal acts that would be a continuing threat to society, (3) whether the defendant acted unreasonably in response to provocation, and (4) whether to impose a death sentence. To decide whether to impose a death sentence, the jury must consider aggravating and mitigating evidence concerning any aspect of the defendant's character or background, circumstances of the offense, and any victim impact evidence. The state must prove each issue beyond a reasonable doubt and the court cannot impose a death sentence if at least one juror believes that it should not be imposed.

2. In Texas, the jury must decide beyond a reasonable doubt whether there is a probability that the defendant would commit violent crimes and be a continuing threat to society (and in certain cases whether he killed or intended to kill). It must consider all of the evidence including the defendant's character and background and the circumstances of the offense that mitigates against imposing the death penalty. If all jurors agree he is a continuing threat, they must then decide whether there is sufficient mitigating circumstances to warrant life imprisonment rather than a death sentence. All jurors must agree to impose a death sentence after considering all the evidence including the circumstances of the offense, the defendant's character and background, and his personal moral culpability. The statute defines mitigating evidence as evidence that a juror might regard as reducing the defendant's moral blameworthiness.

3. In Virginia, the prosecution must prove beyond a reasonable doubt that (1) there is a probability based on evidence of the defendant's prior history or the circumstances surrounding the offense that he would commit violent crimes that would be a continuing serious threat to society or (2) his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind, or aggravated battery to the victim. The jury must consider mitigation but the statute does not specify weighing.

STATES WITH PROOF REQUIREMENTS AT BOTH LEVELS

A number of state statutes require certain amounts of evidence to establish an aggravating or mitigating circumstance and also do so for establishing that aggravating circumstances outweigh mitigating circumstances. Four states provide examples.

1. In New Hampshire (and both federal death penalty statutes), the prosecution must prove an aggravating circumstance beyond a reasonable doubt. Mitigating circumstances must be proven by a preponderance of the evidence. But any juror can find a mitigating circumstance and he can consider it regardless of how many others agrees that it is established. The jury must find aggravating circumstances unanimously. The jury must then consider whether all aggravating circumstances sufficiently outweigh all mitigating circumstances that are found to exist.

2. In Delaware, the jury must consider whether evidence establishes an aggravating factor beyond a reasonable doubt. It must weigh all relevant aggravating and mitigating evidence that relates to the circumstances or details of the offense and the character and propensities of the offender. It must decide whether the aggravating circumstances outweigh mitigating circumstances by preponderance of the evidence.

3. In Maryland, the jury must find an aggravating circumstance beyond a reasonable doubt and a mitigating circumstance by a preponderance of the evidence. It must then decide whether aggravating circumstances outweigh mitigating ones by a preponderance of the evidence.

4. In New Jersey, the state must prove aggravating circumstances beyond a reasonable doubt. The defendant has the burden of producing evidence on the existence of a mitigating factor but does not have the burden of establishing it. The jury can impose the death penalty if all aggravating circumstances outweigh all mitigating ones beyond a reasonable doubt.

LIST OF DEATH PENALTY JURISDICTIONS

DEATH PENALTY JURISDICTIONS

State

Statutory Citations

Alabama

Ala. Code 13A-5-45 et seq.

Arizona

Ariz. Rev. Stat. 13-703

Arkansas

Ark. Code 5-4-603

California

Cal. Penal Code 187-199

Colorado

Colo. Rev. Stat. 16-11-103

Delaware

Del. Code 4209

Florida

Fl. Stat. ch. 921.141

Georgia

Ga. Code 17-10-30 et seq.

Idaho

Idaho Code 19-2515

Illinois

720 ILCS 5/9-1

Indiana

Ind. Code 35-50-2-9

Kansas

Kan. Stat. 21-4624 et seq.

Kentucky

Ky. Rev. Stat. 532.025 et seq.

Louisiana

La. Code Crim. Proc. art. 905 et seq.

Maryland

Md. Code 412 et seq.

Mississippi

Miss. Code 99-19-101 et seq.

Missouri

Mo. Rev. Stat. 565.032

Montana

Mont. Code 46-18-301 et seq.

State

Statutory Citations

Nebraska

Neb. Rev. Stat. 29-2519 et seq.

Nevada

Nev. Rev. Stat. 175.552 et seq.

New Hampshire

N.H. Rev. Stat. 630:5

New Jersey

N.J. Stat. 2C:11-3

New Mexico

N.M. Stat. 31-20A-1 et seq.

New York

N.Y. Crim. Proc. 400.27

North Carolina

N.C. Gen. Stat. 15A-2000

Ohio

Ohio Rev. Code 2929.03 et seq.

Oklahoma

Okla. Stat. 21-701.10 et seq.

Oregon

Or. Rev. Stat. 163.105 et seq.

Pennsylvania

Penn. Stat. 9711

South Carolina

S.C. Code 16-3-20

South Dakota

S.D. Codified Laws 23-A-1 et seq.

Tennessee

Tenn. Code 39-13-204

Texas

Tex. Crim. Proc. 37.071

Utah

Utah Code 76-3-202, 76-3-206

Virginia

Va. Code 19.2-264.2 et seq.

Washington

Wash. Rev. Code 10.95.030 et seq.

Wyoming

Wyo. Stat. 6-2-102

   

United States

18 USC 3591, 21 USC 848

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