Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencers
, 101 Yale L.
92) With regard to incapacitation, however, Justice Kennedy found that no sentencer
could say with sufficient certainty that a juvenile non-homicide offender "would be a risk to society for the rest of his [or her] life.
should take account of any relevant and significant differences, and should strive to achieve equality of impact.
In his conclusion, Williams chastises the nation's highest court for not adequately addressing racial disparities, epidemic inadequacy of counsel, inconsistent commands for the judicial sentencer
, and procedural barriers that prevent federal courts from considering the merits of appeals (including claims of actual innocence).
The purpose is to provide the sentencer
(judge or jury) with mitigating evidence that could support empathy and mercy, leading to a sentence other than death while ensuring that the decision is based on a complete factual and legal basis (O'Brien, 2008).
Second, the scheme must permit mitigating evidence to be introduced by the defendant, and must ensure that it be given meaningful consideration by the sentencer
during the punishment phase.
You then decided you would become judge, jury and sentencer
21) From these decisions, a consistent theme emerged: the sentencer
must weigh the individual aggravating and mitigating circumstances, (22) in a measured fashion, (23) to determine the appropriate sentence between life and death.
Without more, this alone should improve the quality of the decision-making, especially if other information concerning the rules, their scope and application is available to the sentencer
as and when he needs them.
60) The public sentencer
may express resentment by imposing a harsh penalty without giving the offender a meaningful opportunity to appeal to the sentencer
He continued: "These cases - cases such as these of one-punch manslaughter, or death by dangerous driving - can on occasions present the sentencer
with the most difficult sentencing problems of any in the spectrum.
two-step process whereby the sentencer
makes a factual determination of
T]he Eighth and Fourteenth Amendments require that the sentencer
, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.
But it may be highly relevant at the sentencing phase when the sentencer
must calibrate the punishment to the defendant's particular circumstances (for example, recidivism).
Parading evidence of a crime before the sentencer
is a far more potent promoter of substantial sentences than paper minimums, which can readily be avoided by dismissing the case on one ground or another if the result is sufficiently offensive to the trial or appellate court.