38 The Death Penalty in the OSCE Area Second, the selection (or individualized sentencing) component requires a jury’s death penalty decision to be based on individualized consideration of the offence and the defendant’s character and background.41 The jury cannot be foreclosed from considering and giving mitigating effect to any aspect of a defendant’s character or background or circumstance of the offence that mitigates against imposition of a death sentence.42 Mitigating weight can be given to disadvantages such as parental neglect, abuse, or poverty; intellectual or mental disability; capacity to function non-violently in a structured setting such as prison; good conduct or deeds; and any provocation by the victim. In addition, since Furman, the Supreme Court has applied an “evolving standards of decency” analysis, first articulated in Trop v. Dulles, 356 U.S. 86, 100-101 (1958), to conclude that the Eighth Amendment prohibits the execution of individuals who are insane at the time of the scheduled execution,43 mentally retarded,44 or less than 18 years of age at the time of the offence.45 Furthermore, the Supreme Court held that the death penalty for rape was unconstitutionally disproportionate to the crime.46 Finally, capital punishment cannot be imposed for fortuitous killings in the course of other crimes. Rather, the defendant must have a high level of culpability with respect to the death of the victim.47 Criticisms of the Application of the Death Penalty in the United States Criticism of the application of the death penalty in the United States has focused on an array of features: execution of juveniles, execution of the mentally retarded, execution of the mentally ill, lethal-injection procedures, the so-called death-row phenomenon, alleged racial disparities, the prospect of innocent people being executed, and the quality of representation of capital defendants. As noted above, the first two of these – execution of juveniles and of the mentally retarded – have been prohibited by the Supreme Court in the last four years. Others are currently under litigation – execution of the mentally ill and lethal-injection protocols – including with regard to the federal government’s policies and cannot therefore be discussed in this context. The following section addresses the remaining matters. 41 42 43 44 45 46 47 Zant v. Stephens, 462 U.S. at 879; Woodson v. North Carolina, 428 U.S. at 303-304. Johnson v. Texas, 509 U.S. 350, 367 (1993); Boyde v. California, 494 U.S. 370, 378-380 (1990). Ford v. Wainwright, 477 U.S. 399 (1986). Atkins v. Virginia, 536 U.S. 304 (2002). Roper v. Simmons, 543 U.S. 551 (2005). Coker v. Georgia, 433 U.S. 584 (1977). See Tison v. Arizona, 481 U.S. 137 (1987).