Note:
Stephen Hornbuckle, Capital Sentencing Procedure: A Lethal Oddity in the Supreme Court’s Case Law, 73 TEXAS L. REV. 441 (1994).
 

Abstract:
States have taken two approaches to death penalty sentencing— the “weighing” approach and the “nonweighing” approach. The Supreme Court has held that sentencing determined using the “weighing” approach must be subject to some sort of reweighing to comply with the prohibition against cruel and unusual punishment. However, no independent reassessment is required in “nonweighing” jurisdictions. The author argues that there is no distinction justifying the different treatment the Supreme Court has accorded “weighing” and “nonweighing” jurisdictions. Furthermore, the article posits that the trial court, rather than the appellate court, should resentence the defendant to permit the defendant to present additional evidence of mitigating circumstances.