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This article argues that the chaos of the US Supreme Court’s death penalty jurisprudence can be sorted with the use of a single point of clarification. That jurisprudence uses the term “culpability” – and similar terms, such as desert, responsibility, and blameworthiness – without regard to a critical ambiguity. We use “culpability” to refer to fault in wrongdoing, as reflected in “culpability elements” such as purpose or recklessness. We also use culpability to refer to eligibility for punishment, which is at issue in the defenses of insanity or minority. Death sentencing is structured around aggravating and mitigating factors, but aggravation reflects only fault in wrongdoing, whereas mitigation concerns both fault and eligibility. I propose a re-ordering of the constitutional treatment of death sentencing in these terms.
death penalty, punishment, jurisprudence, Supreme Court of the United States (SCOTUS)
Rethinking the Penalty Phase,
Arizona State Law Journal
Available at: https://larc.cardozo.yu.edu/faculty-articles/275