Exorcising Wechsler's Ghost: The Influence of the Model Penal Code on Death Penalty Sentencing Jurisprudence

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Hastings Constitutional Law Quarterly

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Contemporary death penalty law is deeply conflicted. The basic procedural and jurisprudential structures - the foundational principle of "individual consideration," the open-ended evidentiary rules that govern sentencing processes, and the procedural devices by which that unbounded evidence is evaluated - all originated as the offspring of an explicitly non-retributive penal theory crafted in large part by Herbert Wechsler and codified in the Model Penal Code. The Court's understanding of the purposes served by the death penalty, however, has increasingly been informed by retributive principles. Currently, the American Law Institute is undertaking a fundamental revision of the Code's sentencing provisions to reflect the resurgence of retributivism in contemporary penal discourse.

In this Article, the author argues that because the Court has continued to sanction the procedural structures outlined by the MPC - structures which reflect the non-retributive theoretical underpinnings of the Code - contemporary sentencing procedures fail to serve the predominantly retributive role that the Court's understanding of the death penalty indicates they should play. Thus, the capital sentencing procedures outlined in the Code, implemented by numerous states, and sanctioned by the Court, must also be subjected to a new, and searching, scrutiny.

The author suggests that a retributive approach to capital sentencing procedure would diverge from the current utilitarian, offender-based model in three important respects. First, the evidentiary universe upon which sentencing decisions are made would be more tightly circumscribed to ensure that the sentencing decision is grounded on appropriate retributive considerations: the harm caused by the offender and his personal culpability. Second, the mitigation and aggravation components of the sentencing inquiry would be disentangled, and the weighing paradigm reflected in the MPC would be abandoned. Third, in recrafting the penalty phase, arguments in mitigation would be conceptually disaggregated from pleas for mercy. Under such a regime, "bad character" evidence that now routinely is admitted at penalty phase proceedings would instead only be admissible to rebut a defendant's plea for mercy.

By shifting the focus of capital sentencing from the character of the offender to the nature of the offense the predominant retributive goal: ensuring that only the most morally blameworthy defendants are subject to the most severe penal sanction, would better be achieved.


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Recommended Citation

Russell D. Covey, Exorcising Wechsler's Ghost: The Influence of the Model Penal Code on Death Penalty Sentencing Jurisprudence, 31 Hastings Const. L.Q. 189 (2004).





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