Tipping the Scales Toward Death: Why Some Aggravators Weigh More Than Others

At the sentencing phase of modern capital trials, the jury endorses and weighs aggravators against mitigators to determine the appropriate sentence. We present a “dual process” theory of capital sentencing decisions that might explain how and why certain aggravators “tip the scales” toward a death sentence. Sentencing standards provide a rational framework for deciding whether a defendant should live or die, but within this framework there is room for moral intuition, specifically in the weighing of aggravators and mitigators. Certain aggravators might trigger moral intuition and emotion, and, in turn, justify a death sentence when there is substantial mitigation. We conduct a case study of cases that resulted in a death sentence in Nevada, 1976–2016. Aggravators like sexual assault, a child victim, and multiple murders were more likely to be endorsed in cases where there were more, or an equal number of, mitigators and aggravators. We highlight particularly illustrative cases.