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This Article addresses how Lockett v. Ohio and the Supreme Court’s jurisprudence on mitigating factors in capital cases established a more humane death penalty while at the same time undermining the death penalty system. The Court’s emphasis on the constitutional importance of individualized sentencing has, in effect, helped return the U.S. death penalty system to an unconstitutional arbitrary and discriminatory system.

After the U.S. Supreme Court effectively struck down the existing death penalty statutes in 1972, state legislatures responded with new statutes designed to try to make a fairer and less arbitrary death penalty. When the Supreme Court reviewed these new statutes, it established several constitutional requirements for death penalty laws to be constitutional. One of the principles to come out of these cases was that mandatory death penalty statutes violated the constitution. Lockett built upon that reasoning when it stressed the importance of individualized sentencing and that courts and legislatures could not limit what mitigating circumstances a defendant might submit.

One of the results of Lockett, however, was that the principle designed to make the death penalty more humane also again allowed jurors great discretion. Especially in light of the fact that legislatures also created long lists of aggravating factors to make almost all murder defendants eligible for capital punishment, the discretion allowed by Lockett returned the death penalty to a system similar to the unconstitutional statutes that existed prior to 1972.

The first section of this Article provides a brief overview of the early American death penalty, including the role of discretion in capital sentencing throughout that history. The second section discusses Lockett v. Ohio and why it is one of the most important death penalty decisions by the U.S. Supreme Court. Finally, the third section discusses how the Lockett decision in striving to create a better death penalty also may have planted the seeds for the eventual demise of capital punishment.