ABSTRACT
By the late 1960s, the American death penalty was in significant decline. They allowed the imposition of the death penalty for murder. In 1972, in Furman v. Georgia, the United States Supreme Court invalidated prevailing capital statutes as unconstitutional under the Eighth Amendment. State officials condemned the court's intervention and swiftly sought to refashion their statutes to rectify constitutional defects. Unsurprisingly, given the prestige and influence of the American Law Institute (ALI), many states looked to the death penalty provisions of the Model Penal Code (MPC). The most dramatic aspect of the MPC's new approach was its enumeration of aggravating and mitigating factors. This chapter explores the law and practice surrounding aggravating and mitigating evidence. It tracks three strands of constitutional jurisprudence regarding aggravating factors, noting where the court diverges both from the MPC and from the court's own original commitments, and identifying issues that remain to be resolved.
