Document Type



During the last decade, judges, politicians, scholars, and the general public have become troubled about problems with the death penalty in the United States. Also during this time, major studies of the death penalty have recommended a reduction in the number of statutory factors that make one eligible for the death penalty. Despite these concerns, legislatures continue to expand their capital punishment statutes to make more defendants eligible for the death penalty. This Article examines how, during a time of growing concern about innocence and arbitrariness in the death penalty system, a number of legislatures have continued to expand their death penalty statutes, often in inadequate attempts to address other legitimate societal concerns. The ultimate impact of such an ever-expanding death penalty is that almost all murders become eligible for the death penalty, a result that is inconsistent with the Eighth Amendment. The Article begins in Part One by giving a brief overview of the role of statutory eligibility factors in capital cases. This Part also discusses several recent studies that recommend that legislatures should be eliminating aggravating factors, not adding them. In Part Two, the Article lists and categorizes the large number of new eligibility factors that legislatures have added since 1995. In Part Three, the Article discusses some of the reasons for the new factors, and it considers the implications of the expanding death penalty statutes. The Article discusses the inconsistencies between the recommendations to eliminate aggravating factors and the actual practice of adding aggravating factors. The Article concludes that although legislatures have slowed down their expansions of the death penalty in the last few years, many states have broader death penalty statutes than they had a decade ago. These ongoing expansions raise constitutional issues and have been an ineffective response to legitimate political concerns. Another article by the author compiles older capital eligibility and aggravating factors.