Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases

Abstract

This Article addresses whether the U.S. Constitution requires courts to permit capital defendants to submit, during sentencing, the mitigating factor that a codefendant for the same murder was sentenced to prison instead of to death.

The U.S. Supreme Court has repeatedly stressed the importance of mitigating factors in capital cases. For the most part, litigation since the reintroduction of capital punishment in the 1970s has clarified what circumstances are to be weighed as mitigating. But the Court has not addressed the current divide among lower courts regarding whether the Eighth Amendment requires courts to allow juries to consider a codefendant’s sentence as mitigating evidence.

This Article begins with the Supreme Court decisions regarding mitigating factors and proportionality, noting how the Court has stressed the importance of fairness in death penalty cases. This Article additionally examines how courts are currently split on the issue of whether a codefendant’s prison sentence should be weighed as a mitigating factor. Several state courts have treated this factor as mitigating while others have not. Although some U.S. courts of appeals have upheld lower court decisions rejecting this mitigating factor, most of those appellate court decisions were applying a deferential habeas corpus standard of review to uphold the lower court decision. Thus, the issue itself remains unresolved. This Article concludes by explaining why logic and Supreme Court precedent dictate that courts should allow capital defendants to present this mitigating factor to juries. Jurors should be able to weigh the evidence and use it to make a decision when they are choosing between a sentence of death and a sentence of life in prison.

Keywords: death penalty, capital punishment, Eighth Amendment, mitigating factors, mitigating circumstances, codefendants, co-defendants, codefendants' sentence

JEL Classification: K14, K41