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Schopp in Law & Psychology Review (2006) 30. Copyright 2006, Law & Psychology Review. Used by permission.


A series of court opinions and a related line of commentary draw attention to the need for further inquiry regarding the defensible interpretation and application of dangerousness as a consideration in capital sentencing. The court opinions raise questions regarding the manner in which sentencers should interpret and weigh dangerousness as a factor in capital sentencing. In Penry v. Lynaugh, the Supreme Court overturned the capital sentence of a mentally retarded offender under the special issue sentencing standard in force in Texas at that time. This procedure required that the sentencing jury answer two sentencing questions regarding deliberateness and dangerousness. The Court's reasoning included reference to the possibility that the evidence of mental retardation that Penry offered as mitigating might function as a two-edged sword in that it might be seen as mitigating regarding culpability and as aggravating regarding dangerousness, but the Court's reasoning regarding this matter was not entirely clear.

The majority opinion in Atkins v. Virginia referred to the Penry concern that proffered mitigating evidence regarding mental retardation might function as a two-edged sword. The opinion provides no reasoning that explains why such a finding would violate Eighth Amendment doctrine. Rather, the opinion simply refers back to the Penry opinion. Similarly, the Supreme Court of Missouri applied an analysis modeled on the Atkins opinion to a juvenile offender. The opinion includes reference to the Atkins opinion's concern regarding the possibility that evidence offered as mitigating at sentencing could function as a two-edged sword as part of the reasoning supporting the conclusion that the Eighth Amendment categorically precludes capital punishment of offenders who commit capital crimes as juveniles. The Simmons opinion resembles the Atkins opinion, however, in that it provides no clear explanation why it would violate constitutional doctrine for a sentencer to conclude that evidence offered as mitigating regarding culpability also carries aggravating weight regarding dangerousness. In short, the Peny, Atkins, and Simmons opinions raise concerns regarding the possibility that evidence relevant to mental retardation or youth offered in mitigation might serve as a two-edged sword in that a sentencer might interpret it as aggravating regarding dangerousness, but these opinions do not clearly explain why this would raise a constitutional concern.

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