Dahlia Lithwick on the "Sentencing Phase" in Death Penalty Cases

We have become so accustomed to bifurcated capital trials in America�trials at which the guilt phase is separate from the sentencing phase�that we forget how truly bizarre this system can be. We end up with a "head" trial�a dispassionate hearing on what happened, in which evidence is sometimes cruelly limited to the cold, hard facts. That proceeding is closely followed by a "heart" trial�a mini hearing full of hearsay and legally irrelevant detail: The defendant was abused as a baby; the victim was a wonderful wife and mother. Witnesses are, in short, encouraged to take the stand and emote�describing how desperately they miss the victim, or how tragic the life circumstances of the defendant really were. And, instead of deciding guilt beyond a reasonable doubt, jurors are asked to engage in a subjective balancing test�weighing a list of aggravating factors (was the murder particularly heinous; was it done for financial gain; does the defendant have a violent criminal history?) against a list of mitigating ones (was the defendant abused as a child; was he on drugs or otherwise impaired in his judgment?).

It's an interesting read, brought to you by Slate.