Class 3: Proportionality, Aggravating Circumstances, and Future Dangerousness

The death penalty is supposedly imposed only for the most aggravated crimes committed by the most incorrigible offenders – “the worst of the worst.” The Supreme Court in interpreting the “cruel and unusual clause” grappled with the questions of whether the death penalty was “excessive” or “disproportionate” for certain crimes – deciding whether it may be imposed for certain crimes and upon certain kinds of offenders. Most capital sentencing statutes provide for consideration of “aggravating factors” in deciding whether to impose the death penalty. Aggravating factors are supposed to limit the death penalty to the worst crimes and the most incorrigible offenders. This class examines the degree to which the factors used are meaningful, and whether some may be so vague that they do not protect against arbitrariness. One of the most controversial aggravating circumstances is “future dangerousness” which requires a prediction of whether the offender is likely to be a danger to society in the future. The class examines the evidence which may be considered by the jury in answering the question and the reliability of the decisions reached, as well as how a defendant may attempt to rebut that prediction.

A. Proportionality

This segment is about the Court’s decisions finding that death is excessive and disproportionate for certain crimes, such as those in which the victim was not killed, and for certain offenders, such as the intellectually disabled and those under 18 at the time of their crimes.


Proportionality (PDF), including:

    • The Role of the Offender in the Crime
      • Summary of Enmund v. Florida, 458 U.S. 782 (1982)
      • Tison v. Arizona, 481 U.S. 137 (1987)
    • For a Crime where the Victim is Not Killed
      • Coker v. Georgia, 433 U.S. 584 (1977)
      • Note on Eberheart v. Georgia, 433 U.S. 917 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008)
    • For Intellectually Disabled Offenders
      • Note on Penry v. Lynaugh, 492 U.S. 302 (1989)
      • Atkins v. Virginia, 536 U.S. 304 (2002)
      • Further Developments in Daryl Atkins’ Case
      • Issues Remaining After Atkins
      • State ex rel. Andrew Lyons v. Lombardi, 303 S.W.3d 523 (Mo. 2010)
    • For Children
      • Roper v. Simmons, 543 U.S. 551 (2005)
    • Individual Proportionality Review
      • Pulley v. Harris, 465 U.S. 37 (1984)
      • Proportionality Review After Pulley
      • Walker v. Georgia, 129 S.Ct. 453 (2008) (Statements of Stevens and Thomas, JJ., regarding the denial of certiorari)
      • Proffitt v. State, 510 So.2d 896 (Fla. 1987)
      • Green v. State, 975 So.2d 1081 (Fla. 2008)
      • Note – Honda Motor Company, Ltd. v. Oberg, 512 U.S. 415 (1994)
      • Bell v. State, 938 S.W.2d 35 (Tex. Crim. App. 1996)
    • Procedural Protections – Death is Different
      • Gardner v. Florida, 430 U.S. 349 (1977)
      • Green v. Georgia, 442 U.S. 95 (1979)
      • Beck v. Alabama, 447 U.S. 625 (1980)
Lecture (in two parts):



B. Aggravating Factors

The death penalty may be imposed only if a jury finds an “aggravating factor,” and, once one is found, aggravating factors are considered in deciding whether to impose the death penalty or life imprisonment. The purpose of aggravating factors is to narrow the crimes for which death may be imposed to the worst ones. This segment examines the degree to which the aggravating factors serve these purposes, and whether some may be so vague that they do not limit imposition of the death penalty to the most heinous crimes.


Aggravating Factors (PDF), including:

    • Zant v. Stephens, 462 U.S. 862 (1982)
    • Note – Lowenfield v. Phelps, 484 U.S. 231 (1988)

Vagueness & Overbreadth Challenges

      • Godfrey v. Georgia, 446 U.S. 420 (1980).
      • Maynard v. Cartwright, 486 U.S. 356 (1988)
      • A note on Walton v. Arizona, 497 U.S. 639 (1990), Lewis v. Jeffers, 497 U.S. 764 (1990), and Arave v. Creech, 507 U.S. 463 (1992)
      • State v. Snelling, 236 P.3d 409 (Ariz. 2010)

Assessing Prejudice Where There is an Invalid Aggravating Circumstance

      • Brown v. Sanders, 546 U.S. 212 (2006)




C. Future Dangerousness


Future Dangerousness (PDF), including:

    • Testimony by Mental Health Experts
    • Barefoot v. Estelle, 463 U.S. 880 (1983)
    • Flores v. Johnson, 210 F.3d 456 (5th Cir. 2000) (Garza, J., concurring)
    • Saldano v. State (two decisions)
    • Buck v. Thaler, 132 S.Ct. 32 (2011)
    • Evans v. Muncy, 498 U.S. 927 (1990) (Marshall, J., dissenting from the denial of certiorari)





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