When Balance and Fairness Collide: An Argument for Execution Impact Evidence in Capital Trials

A central precept of death penalty jurisprudence is that only the “death worthy” should be condemned, based on a “reasoned moral response” by the sentencing authority. Over the past decade, however, the Supreme Court has distanced itself from its painstaking efforts in the 1970s to calibrate death decision making in the name of fairness. Compelling proof of this shift is manifest in the Court’s decisions to permit victim impact evidence in capital trials, and to allow jurors to be instructed that sympathy for capital defendants is not to influence capital decisions. This Article examines a novel strategy now being employed by capital defendants in response: the proffer of “execution impact evidence, ” intended to inform the sentencer of the manifold consequences of the defendant’s possible execution. Professor Logan advances several arguments in favor of its admission, based most prominently on a defendant’s constitutional right to have consideration given to mitigating evidence, and the need for such evidence to restore a semblance of the even-handedness historically sought in capital trials.