Terry Moran has this post on his blog at ABC, titled "How the death penalty really works." His main gripe is that the death penalty has become too emotional and insufficiently rational.
Instead, we have a crying contest, a competition to see which side can break the jurors' hearts harder--either the prosecution with its portrayal of Mari Anne Pope as a devout Christian killed with bloodthirsty fury, or the defense and its portrayal of Slagle as an abused, alcoholic teenager. Why should those issues--and the emotions they trigger--matter?
There is no doubt whatever where the blame for this lies. It is squarely on the doorstep of the Supreme Court and its disastrous 1978 decision in Lockett v. Ohio. That decision created out of blue sky a constitutional mandate to allow everything including the kitchen sink that the defendant wished to throw into the penalty phase. Neither the absence of any basis for such a mandate in the text or history of the Constitution nor the fact that the Court was contradicting decisions just two years earlier, that had approved systems considering less than everything, seemed to matter.
Victim impact statements were banned for a while, but the injustice of allowing one side to drag in all the emotion while banning the other side was so gross that the Court backed off in Payne v. Tennessee.
The solution to the problem Moran sees is quite simple. Overrule Lockett and then provide by statute that the penalty phase will be limited to (1) the circumstances of the present crime; and (2) the defendant's criminal record or lack of one. No more abuse excuse. No more crying relatives. No more expensive experts, except in cases where actual insanity is genuinely at issue. Such a system would be simpler and cheaper. It would also be fairer, since the effectiveness of the crying game depends more on the skill of the defense team presenting it than it does on the actual probative value of the evidence.