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Aggravating And Mitigating Factors: The Paradox Of Today's Arbitrary And Mandatory Capital Punishment Scheme, Jeffrey L. Kirchmeier

William & Mary Bill of Rights Journal

Over twenty years ago, the United States Supreme Court held that both mandatory capital sentencing schemes and total discretionary capital sentencing schemes violate the Eighth Amendment. According to Jeffrey Kirchmeier, the "guided discretion" capital sentencing scheme of sentencing factors that has developed, however, has the constitutional problems of both mandatory death penalties and unlimited discretion death penalties.

Justices Scalia, Blackmun, and Thomas have noted that the mandate of unlimited mitigating circumstances has resulted in an arbitrary system. Kirchmeier argues that today's sentencing scheme is arbitrary also because of undefined aggravating factors, unlimited nonstatutory aggravating factors, and victim impact evidence. According …