The “Especially Heinous” Aggravator: Sharpshooter Bonuses Do Not Belong in Capital Sentencing Law

(Excerpt) In capital cases, the jury is often left with the onerous decision about whether to impose the death penalty. To help jurors make sentencing decisions, judges will instruct them on how to apply the law. As one juror summarized, “[The judge told us] that we were to make our decision on the basis of his instructions and the law, not what we felt, not what we thought ought to be.” Because of jury instructions like this, jurors know that they must base sentencing decisions on the law rather than their personal beliefs. But what happens when the law itself leaves jurors to make decisions about who lives or dies based on the sentencers’ subjective beliefs? Fortunately, states that allow capital punishment have statutes outlining circumstances that sentencers must find present before they can choose to sentence the defendant to death. Usually, these statutes specify aggravating circumstances that, according to the legislature, set capital murder apart from normal first-degree murder cases. One type of aggravating circumstance, however, asks the jury to take part in that determination. Specifically, this aggravating circumstance allows jurors to impose the death penalty if they determine “[t]he murder was especially heinous, atrocious, or cruel.” This aggravating factor is controversial because, unlike most, the especially heinous, atrocious, or cruel (“HAC”) aggravator does not measurably narrow the class of people eligible for capital punishment. Because the HAC aggravator is vague and essentially asks ordinary people to determine whether an unjustified killing is “particularly bad,” a juror could find that any murder meets this standard