In 1976, the U.S. Supreme Court approved the plan submitted by Georgia to guide the discretion of capital juries. As a result of the Gregg decision, states that seek to impose a death sentence must list the aggravating circumstances, one or more of which must exist before a death sentence can be considered. The next step requires the jury to determine if any mitigating circumstances exist. Any factor can be considered as a mitigating circumstance. The standard of proof is lower for mitigating circumstances and the jury is not required to be unanimous. If one or more aggravating circumstances exist (the jury does have to be unanimous), then the jury has to determine if one or more mitigating circumstances exist that outweigh the aggravating circumstance.
As research has shown, jurors are utterly confused over this process. First, the language is not written in such as manner as to permit typical jurors to comprehend the sentencing instructions. Many state statutes are also silent on the issues of unanimity, burden of proof, how to weigh mitigators against aggravators, and the level of proof required.
While these limitations would be easy to improve, in my opinion it is impossible to write instructions so as to be universally comprehensible.
Recently, a New Jersey prosecutor tried to tamper with a system that is already broken (read Justice Blackmun's dissent in Callins v. Collins, 1994), but not for the better. According to the Gregg decision a single juror has the ability to determine, based on a preponderance of the evidence, that a defendant is mentally retarded, to think that this mitigator outweighs the aggravator, and to vote for life in prison. The prosecutor argued that the standard for mitigating circumstances should be changed so that the jury has to be unanimous in finding the existence of mental retardation as a mitigating circumstance.
The New Jersey Supreme Court ruled against the prosecutor and elected to uphold the Gregg standards. As bad as the current system of so-called guided discretion currently is, the results would have been worse if New Jersey had adopted the prosecutor's proposed changes. By requiring the jury to be unanimous on the existance of mitigating circumstances, the process would then virtually impose a mandatory death sentence because individual discretion would be further reduced or eliminated.
It is bad enough to pretend that the current system works. The bulk of evidence gathered through efforts such as the Capital Jury Project strongly suggests that jurors are confused about how to go about the decision-making process. But to further tilt the current process toward death moves the entire judicial process even further from the high ideals contained in cases such as Furman, Tropp, and even Gregg. What has happened to distributive justice? Why is the prosecutor still trying to see that a mentally-retarded defendant is executed after the Atkins decision? Where are the evolving standards of decency that mark the progress of a maturing society?