In McCoy v. Louisiana, the U.S. Supreme Court recognized an expanded Sixth Amendment autonomy right for capital defendants, allowing them to maintain their factual innocence at trial at all costs. The Court’s concern with such defendants’ dignity has an intuitive appeal, and its holding followed neatly from the Court’s Sixth Amendment cases.

But McCoy has some troubling implications for another strand of the Court’s capital jurisprudence: the requirement that death sentences be proportional both to the offense and to the offender. The core of proportionality is the bifurcated capital trial, which channels aggravating and mitigating evidence—that is, evidence pertaining to the appropriate penalty—into a separate hearing. But staunchly maintaining innocence at the guilt phase of a capital trial—as McCoy now enables capital defendants to do—will often undermine common mitigation strategies at the penalty phase. Moreover, McCoy can be read as shifting control of penalty-phase strategic decisions—classically the province of the lawyer—away from the lawyer and toward capital defendants. In these two ways, McCoy quietly privileges a capital defendant’s autonomy over the proportionality requirement, offering some support for the notion that a defendant may waive his right to present mitigating evidence, notwithstanding the need for an individualized accounting of culpability in capital sentencing.

The proportionality requirement protects both individual defendants and society’s interest in just, accurate sentencing. By intimating that waiver of mitigation is consistent with that requirement, the seemingly pro-defendant outcome in McCoy may contribute to the trend of narrowing the proportionality doctrine into oblivion.

* J.D. Candidate, Stanford Law School, 2019. Thanks to Emily Hughes for my first exposure to the essential work of capital mitigation specialists; to the dedicated and brilliant lawyers at the California Appellate Project for sparking my interest in this issue; and to Larry Marshall for his generous and immensely helpful feedback on more than one draft. Thanks also to my editors and friends at the Stanford Law Review—Jane Kessner, Annie Shi, Parker Cragg, Liza Starr, Meghan Palmer, Ethan Herenstein, and most of all Yoni Marshall, who makes everything better.