Smith and individualized exemptions

[Sanford Levinson]

I think Mark's example is extremely telling.  After all, capital sentencing
is the ultimate individualized hearing, and the Constitution (as interpreted
by the Court) prohibits mandatory death sentences.  So why doesn't the
McConnell MFG principle mean that Paul Hill *must* be spared because, after
all, the judge a) has the authority to take a variety of mitigatint
circumstances into account and b) let's assume that the judge on at least
one occasion has chosen a life sentence because, say, the defendant had had
an usually egregious childhood?  (Is the latter assumption really necessary?)

Sandy Levinson

At 03:34 PM 2/12/97 EDT, you wrote:
>I am wondering how the following hypothetical fits into our
>discussion of Smith.  Back when I was a law student doing anti-death
>penalty work, I recall that at least one state had something like
>the following mitigating circumstance: "the motive for the murder was
>to do good."  Suppose in a state which such a mitigating circumstance
>a defendent found guilty of first degree murder makes a convincing
>case that he or she had a good faith belief that that murder in this
>circumstance was a religious obligation.  Does Smith (or the First
>Amendment properly interpreted) require the judge (assume the
>sentencing hearing is before a judge only) to find that mitigating
>circumstance?  Does it matter whether the statute specifically states
>such a mitigating circumstance (remember under Lockett that the state
>cannot forbid introduction of evidence that a reasonable person might
>regard as mitigating)?  Does it matter whether the defendant thought
>he or she had a religious duty to murder abortionists or a religious
>duty to murder conservative Christians?
>
>Mark A. Graber
>mgraber at bss2.umd.edu
>
>

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Sanford Levinson
B.U. Law School
EMail: levinson at bu.edu
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