The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:
Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.
A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty. SED has played a central role in the Court’s elaboration of the “consideration” requirement. It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime. We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence. When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence. We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement. Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.
We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence. The Constitution requires that death sentences must be consistent with community values. Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.
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