Ark. Code Ann. § 5-4-605 (2026)

Research References

ALR.

Validity, Construction, and Application of Aggravating and Mitigating Provisions of Death Penalty Statutes — Supreme Court Cases. 21 A.L.R. Fed. 2d 1.

Construction and Application of United States Sentencing Guideline § 2A2.1(b)(1), 18 U.S.C.A., Providing Enhancement for Attempted Murder or Assault with Intent to Commit Murder Dependent Upon Nature or Degree of Injury. 30 A.L.R. Fed. 2d 385.

Ark. L. Rev.

Blume and Bruck, Sentencing the Mentally Retarded to Death: An Eighth Amendment Analysis, 41 Ark. L. Rev. 725.

Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Evidence, 24 U. Ark. Little Rock L. Rev. 1007.

Case Notes

Constitutionality.

The language used by the legislature in naming the various elements of mitigation could not be said to be vague and beyond the common understanding and practices of the ordinary man or juror so as to be constitutionally defective. Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975), vacated, Collins v. Arkansas, 429 U.S. 808, 97 S. Ct. 44, 97 S. Ct. 45 (1976), aff'd, 261 Ark. 336, 548 S.W.2d 135 (1977); vacated insofar as judgment left undisturbed the death penalty imposed, Collins v. Arkansas, 429 U.S. 808, 97 S. Ct. 44, 97 S. Ct. 45 (1976) (decision under prior law).

The capital murder sentencing statutes are not unconstitutionally vague simply because this section does not contain a specific definition of “mitigating circumstance”; the fact that the jury is not limited to specifically enumerated mitigating factors accrues to the benefit of the defendant, because it gives the jury a greater opportunity to extend leniency to him. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26, cert. denied, Henderson v. Arkansas, 464 U.S. 1012, 104 S. Ct. 536 (1983).

In General.

Mitigating circumstances are not limited to the several mentioned in this section; the jury may take into account any circumstance which it considers to mitigate the seriousness of the crime. Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988).

This section outlines six explicit statutory mitigating circumstances, but juries may find anything to be a mitigating circumstance. Snell v. Lockhart, 14 F.3d 1289 (8th Cir. Ark. 1994).

The mitigating circumstances that may be presented to the jury are not limited to those set out in the statute. Willett v. State, 335 Ark. 427, 983 S.W.2d 409 (1998).

Applicability.

Mitigating circumstances, as typified by those listed in this section, are applicable only to the particular defendant, not to capital punishment in general. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), cert. denied, Simmons v. Arkansas, 464 U.S. 865, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983).

Abuse.

Evidence of a background of abuse is both relevant and important to a jury's determination of appropriate punishment. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Had the jurors been provided information concerning the abuse defendant suffered as a child, along with evidence that he was intoxicated at the time of offense, they would have not imposed the death penalty. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Due Process.

Insofar as former section governing sentencing for capital felonies limited the jury's consideration of aggravating circumstances for sentencing purposes to those enumerated, but did not limit consideration of mitigating circumstances, it worked to the advantage rather than prejudice of a defendant and thus the sentencing procedures posed no problem of due process. Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894, 98 S. Ct. 272, 54 L. Ed. 2d 180 (1977) (decision under prior law).

Evidence.

Court correctly refused to allow the defense to introduce pictures of a gas chamber, a gallows, and an electric chair, none of which could be regarded as a mitigating circumstance. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), cert. denied, Simmons v. Arkansas, 464 U.S. 865, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983).

It is a matter of judgment whether the facts support the jury's findings as to the issues of aggravating and mitigating circumstances, but an appellate court will not substitute its judgment for that of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory requirements. O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

The list of mitigating circumstances set out in this section consists of circumstances relating to the capital offense for which the defendant is being sentenced; this list is not exclusive, and a defendant may submit other circumstances for the jury's consideration. However, court rejected argument that jury must find a mitigating circumstance based on the definition of the prior offense of voluntary manslaughter as including acts arising from serious provocation by the victim. Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992), cert. denied, Ward v. Arkansas, 506 U.S. 841, 113 S. Ct. 124 (1992).

A jury is not required to believe the defendant's evidence and is not required to find a mitigating circumstance; a jury is not required to find a mitigating circumstance just because the defendant puts before the jury some evidence that could serve as the basis for finding the mitigating circumstance. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

A jury may generally refuse to believe a defendant's mitigating evidence, but when there is no question about credibility and, when, in addition, objective proof makes a reasonable conclusion inescapable, the jury cannot arbitrarily disregard that proof and refuse to reach that conclusion. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Photographs showing the crime scene with the victim present and photographs of the autopsy performed on the victim as the photographs were admissible as relevant to the State's robbery theory and to show that the fatal gunshot was a contact wound from the rear; evidence that defendant was arrested at a nearby liquor store after having just purchased some wine was admissible to show defendant's motive was robbery. Matthews v. State, 352 Ark. 166, 99 S.W.3d 403 (2003), appeal dismissed, — Ark. —, — S.W.3d —, 2007 Ark. LEXIS 612 (Nov. 15, 2007).

Fear of Detection.

Fear of detection would be an aggravating circumstance, not a mitigating one. Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), cert. denied, Simmons v. Arkansas, 464 U.S. 865, 104 S. Ct. 197, 78 L. Ed. 2d 173 (1983).

Death penalty verdict was not invalidated where jurors listed only aggravating factors permitted by § 5-4-604 and listed fear of detection as a mitigating factor; the juror's finding would not be disturbed since it was rational. Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988).

Jury could view the murderer's fear of detection as a mitigating circumstance as to the killing of the last three victims in that it at least provided an understandable, although twisted, motive, and therefore mitigated the coldbloodedness of those crimes. Simmons v. Lockhart, 814 F.2d 504 (8th Cir. 1987), cert. denied, 485 U.S. 1015, 108 S. Ct. 1489, 99 L. Ed. 2d 717 (1988).

Instructions.

Circuit judges are hereafter directed to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, Miller v. Arkansas, 450 U.S. 1035, 101 S. Ct. 1750 (1981), superseded by statute as stated in, Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994).

The jury was erroneously instructed by the trial court that the jury must unanimously find that mitigating circumstances existed; accordingly, the jury was deprived of the right to assess the mitigating circumstances individually and weigh mitigating circumstances as each juror chose to do. Because of the disadvantage and impairment that the jury was confronted with in weighing and evaluating the aggravating circumstances as against mitigating circumstances, the jury would not have been justified in assessing the death penalty beyond a reasonable doubt. Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), aff'd, 65 F.3d 676 (8th Cir. 1995).

Instructions, together with forms with questions regarding unanimity on certain points, relating to mitigating circumstances found not to lead the jury to the misunderstanding that a unanimous vote is required before any mitigating circumstance may be found. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996).

Judicial Review.

A harmless error analysis may not be applied to mitigating circumstances found by the jury. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). See also Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997), cert. denied, Jones v. Arkansas, 522 U.S. 1002, 118 S. Ct. 574 (1997).

Other Mitigating Factors.

Even though defendant may have changed his life in prison, the jury could have found that this change was not a mitigating factor. Hill v. State, 331 Ark. 312, 962 S.W.2d 762, cert. denied, 525 U.S. 860, 119 S. Ct. 145, 142 L. Ed. 2d 118 (1998).

Counsel was not ineffective for refraining from investigating or presenting evidence concerning the physical and mental abuse the defendant suffered at the hands of his father as a child. Fretwell v. Norris, 133 F.3d 621 (8th Cir. 1998), cert. denied, 525 U.S. 846, 119 S. Ct. 115 (1998).

Prior Criminal Activity.

It is important to note that subdivision (6) states “no significant prior history of criminal activity,” and not “no significant prior history of prior convictions.” Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Religious and Ethical Considerations.

Religious and philosophical approaches to the death penalty are not relevant as mitigating evidence. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

Sentence.

The trial court had the authority to order defendant's two capital murder sentences to run consecutively under § 5-4-403(a); merger was not required by § 5-1-110(d)(1). Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

State of Mind.

Where the state adduced testimony from psychiatrist that defendant was examined by him and found to be without psychosis and to know right from wrong, the evidence justified the jury's finding that no mitigating circumstances existed. Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975), vacated, Collins v. Arkansas, 429 U.S. 808, 97 S. Ct. 44, 97 S. Ct. 45 (1976), aff'd, 261 Ark. 336, 548 S.W.2d 135 (1977); vacated insofar as judgment left undisturbed the death penalty imposed, Collins v. Arkansas, 429 U.S. 808, 97 S. Ct. 44, 97 S. Ct. 45 (1976) (decision under prior law).

Imposition of the death penalty was justified where there was sufficient evidentiary support for the jury's failure to find, as a mitigating circumstance, that the defendant had no capacity for understanding the wrongfulness of his conduct or that he was mentally impaired or emotionally disturbed at the time of the crime. Neal v. State, 261 Ark. 336, 548 S.W.2d 135 (1977), cert. denied, Neal v. Arkansas, 434 U.S. 878, 98 S. Ct. 231 (1977) (decision under prior law).

Where the only evidence of extreme emotional disturbance was the opinion testimony of clinical psychologists that emotional pressures in certain situations typically accompany the disorders said to belong to defendants, the testimony was general and the jury was not required to accept opinion as fact or even conclude that what was generally true was specifically true of these defendants. Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. denied, Ruiz v. Arkansas, 454 U.S. 1093, 102 S. Ct. 659 (1981).

The performance of defendant's lawyers at the guilt phase of his state court murder trial was deficient on account of their failure to present evidence of his history on anti-psychotic drugs and the likelihood that he had stopped taking them sometime within three to seven weeks before commission of the offense. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), rehearing denied, — F.3d —, 1994 U.S. App. LEXIS 22021 (8th Cir. Aug. 16, 1994), cert. denied, Norris v. Hill, 513 U.S. 1102, 115 S. Ct. 778 (1995).

Defendant was not deprived of constitutionally-mandated psychiatric assistance. Parker v. Norris, 64 F.3d 1178 (8th Cir. 1995), cert. denied, 516 U.S. 1095, 116 S. Ct. 820, 133 L. Ed. 2d 764 (1996).

Even if the opinions of the doctors at the state hospital, indicating that defendant suffered from multiple mental defects, had remained uncontradicted, which they did not, the jury would have been free to disbelieve them and find that punishment of defendant should not be mitigated by his mental condition. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226, 116 S. Ct. 1861, 134 L. Ed. 2d 960 (1996).

Prosecutor properly stated the law concerning § 5-4-605(3), when the prosecutor reminded the jury of the psychological examiner's expert opinion of defendant's ability to appreciate the criminality of his conduct, to conform his conduct to the law, and then explained that because defendant was able to do both of these things the mitigating circumstances presented by the defense would not apply; the State was permissibly responding to defendant's claim of the presence of mitigating circumstances by impairment due to mental disease or defect. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (Ark. 2003).

Where defendant was sentenced to death after his conviction of capital murder, as the jury acknowledged that he suffered from borderline-personality disorder and generalized anxiety disorder but found that those disorders did not prevent from being able to conform his behavior to the law and that he was not under extreme mental or emotional disturbance at the time of the murder, the trial court met its obligation to bring before the jury mitigating factors regarding defendant's mental disease or defect. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Totality of Circumstances.

Weighing the aggravating circumstances against the mitigating ones for sentencing purposes is not simply a matter of counting the number of aggravating and mitigating circumstances and striking a balance but is a reasoned judgment to be exercised in light of the totality of the circumstances. Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894, 98 S. Ct. 272, 54 L. Ed. 2d 180 (1977) (decision under prior law).

Trial Proceedings.

In defendant's trial for two capital murders and aggravated robbery, defendant's argument that some third person, who may or may not have had a burn related to the burning of the victims in a car, and who may or may not have had a motive for revenge against one of the murder victims, should have been implicated as having committed the crimes for which defendant was charged, held without merit; the proposition was highly speculative and conjectural, and under both Burmingham and Zinger , the evidence was clearly not admissible. Walker v. State, 353 Ark. 12, 110 S.W.3d 752 (2003).

Petitioner's death sentence could not stand because the manner in which the jury completed its form allowed only the conclusion that it eliminated from its consideration all evidence presented of mitigating circumstances and sentenced petitioner to death solely based on an aggravating circumstance, which was reversible error. Williams v. State, 2011 Ark. 534 (2011), overruled, Nooner v. State, 2014 Ark. 296, 438 S.W.3d 233 (2014).

Victim Impact Evidence.

Inmate who had been sentenced to death was incorrect in his argument that victim impact procedure was inadequate in not requiring the jury to find proof beyond a reasonable doubt as to victim statements; the court also specifically rejected the notion that victim-impact evidence is an aggravating circumstance or that it violates the statutory weighing process set out in §§ 5-4-603 through 5-4-605. Johnson v. State, 356 Ark. 534, 157 S.W.3d 151, cert. denied, 543 U.S. 932, 125 S. Ct. 326, 160 L. Ed. 2d 235 (2004).

Section 5-4-602(4) is not in conflict with §§ 5-4-603 through 5-4-605 and the Arkansas Rules of Evidence because victim-impact evidence is relevant to punishment separately from aggravating and mitigating circumstances. Anderson v. State, 367 Ark. 536, 242 S.W.3d 229 (2006), cert. denied, 551 U.S. 1133, 127 S. Ct. 2973, 168 L. Ed. 2d 707 (2007).

Youth of Defendant.

While chronological age does not necessarily control in the jury's determination of whether a defendant's youth is a mitigating circumstance, it is an important factor which must still be weighed in light of varying conditions and circumstances. Giles v. State, 261 Ark. 413, 549 S.W.2d 479, cert. denied, 434 U.S. 894, 98 S. Ct. 272, 54 L. Ed. 2d 180 (1977) (decision under prior law).

This section does not define youth in terms of mere chronological age; the term “youth” must be considered as relative and this factor weighed in the light of varying conditions and circumstances. Hill v. Lockhart, 927 F.2d 340 (8th Cir. Ark. 1991).

Circuit court erred by denying appellant juvenile's petition for writ of habeas corpus; because he was only fourteen years old when he committed capital-murder and aggravated-robbery, his mandatory sentence of life imprisonment without parole violated the Eighth Amendment, U.S. Const. amend. VIII. In considering the capital-murder statute as it pertained to juveniles, the Supreme Court of Arkansas severed portions of § 5-10-101(c) which provided that capital murder was punishable by death or life imprisonment without parole pursuant to this section and §§ 5-4-601, 5-4-607, and 5-4-608. Jackson v. Norris, 2013 Ark. 175, 426 S.W.3d 906 (2013).

Cited: Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983); Singleton v. Lockhart, 653 F. Supp. 1114 (E.D. Ark. 1986); Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890 (1988); Hill v. Lockhart, 719 F. Supp. 1469 (E.D. Ark. 1989); Rector v. Lockhart, 727 F. Supp. 1285 (E.D. Ark. 1990); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991); Snell v. Lockhart, 791 F. Supp. 1367 (E.D. Ark. 1992); Hill v. Lockhart, 791 F. Supp. 1388 (E.D. Ark. 1992); Whitmore v. Lockhart, 834 F. Supp. 1105 (E.D. Ark. 1992); Whitmore v. Lockhart, 8 F.3d 614 (8th Cir. Ark. 1993); Hill v. Lockhart, 824 F. Supp. 1327 (E.D. Ark. 1993); Lee v. State, 327 Ark. 692, 942 S.W.2d 231; Thomas v. State, 370 Ark. 70, 257 S.W.3d 92; True v. State, 2017 Ark. 323, 532 S.W.3d 70 (2017).

Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (Ark. 2003); Beulah v. State, 352 Ark. 472, 101 S.W.3d 802 (2003).