In the U.S. legal system, mitigation (known also as mitigating evidence or mitigating factors) encompasses facts about a defendant’s background, character, and the circumstances of the offense. While not introduced to lessen legal culpability, mitigating factors may lessen a defendant’s moral culpability. Thus, mitigation is not introduced to absolve guilt but rather to lessen a sentence or judgment by contextualizing the defendant’s behavior. Although sometimes observed in civil cases and criminal sentencing generally, the majority of mitigation is presented by criminal defense in capital (i.e., death penalty) cases. This article describes the legal roots, definition, and practice of mitigation, concluding with a discussion of research on mitigation in capital jury decision-making.
Legal Roots and Definition of Capital Mitigation
In 1972, the U.S. Supreme Court ruled in Furman v. Georigia (1972), that the death penalty had been arbitrarily and capriciously applied and was thus unconstitutional under the Eighth Amendment to the U.S. Constitution’s ban on cruel and unusual punishment. The Congress and 35 states responded by rewriting capital punishment statutes, and in 1976, the Court ruled that certain new frameworks satisfied the Constitution, effectively lifting a 4-year moratorium on death sentences in the United States. Frameworks passing constitutional muster provided objective criteria directing and limiting death sentences, ensured appellate review, and permitted the sentence to take into account the defendant’s character and record. Today, although nuanced differences exist among the states, three features relevant to mitigation are common: (1) capital trials are bifurcated, with separate guilt and penalty phases heard by the same jury; (2) the jury is allowed to consider evidence of aggravating and mitigating factors during the penalty phase; and (3) jury instructions must provide guidance to juries making life-versus-death recommendations.
Subsequent rulings have further refined capital jurisprudence, including that juveniles and individuals with intellectual disability are ineligible for death and that only murder may be punished by death. Prosecutors must also prove the existence of at least one aggravating factor for a defendant to be eligible for death. While aggravating factors vary by state, they must be statutorily defined and thus generally refer to characteristics of the murder itself. Common aggravators include murder committed for pecuniary gain, murder of a law enforcement officer, and murder perceived as especially heinous, atrocious, and cruel.
If aggravating evidence is presented, then the defense presents mitigation. Some mitigators are prescribed by statute, while others are nonstatutory and unlimited in content. Mitigation can be separated into two broad categories: proximal mitigation, which is directly connected to the offense, and remote mitigation, which is unrelated to the offense but relevant to the defendant’s life history. Commonly presented mitigators reflect childhood trauma, mental illness, and unlikelihood of future violent behavior. While aggravators must be proven beyond a reasonable doubt, mitigating factors require proof by a preponderance of the evidence.
Since the death penalty was reinstated, the Court has also clarified the defense’s duty to investigate and present mitigation in capital cases. It has ruled that juries must consider any potential mitigation and must assign it some weight in decision-making. While the value of mitigating factors is individually evaluated by each juror, the final sentencing recommendation must be unanimous based on a weighing or balancing of the aggravating and mitigating evidence.
The Practice of Capital Mitigation
The American Bar Association has long recognized that capital defense is unique and requires specialized training but only recently has it acknowledged that attorneys lack the skills and knowledge to conduct a mitigation investigation. In the early 2000s, the role of the mitigation specialist was formally established by the American Bar Association, which later published supplementary guidelines on the mitigation function of defense teams in capital cases. These guidelines require the capital defense team to be composed of two defense attorneys, a guilt-phase investigator and a mitigation specialist.
Mitigation investigation is a form of forensic assessment that focuses on the identification and presentation of mitigating factors unique to each capital defendant. Mitigation is considered a fact-based form of investigation, the reliability of which must be established using a cross section of data from multiple sources. Toward that end, the mitigation specialist must collect and analyze records on the defendant then conduct interviews with the defendant, the defendant’s family, and any individuals (e.g., teachers, employers, friends) who may have known the defendant well. The end product of a mitigation investigation includes an extensive social history and a chronology of significant life events, often provided to mental health experts who may testify in the sentencing phase.
Qualifications for mitigation specialists vary by state, but most are trained in forensic social work and related mental health professions. Few states require a specific educational degree, but all require experience and apprenticeships in capital mitigation. Although psychologists and psychiatrists have the prerequisite knowledge of human behavior, many lack training in investigation, which is usually conducted outside of an office setting. A notable weakness of mitigation training is that it is usually offered by attorney-based organizations, which may not be well-grounded in the psychological sciences.
Research on Capital Mitigation
Research on capital mitigation and the penalty phase of capital trials generally has found that not all jurors are equally likely to sentence a defendant to death. All capital jurors must be death-qualified during jury selection, which means they must state a willingness to consider both life and death at sentencing. But, compared to their disqualified counterparts, death-qualified jurors are more likely to support the death penalty in general, and they tend to be more open to aggravating factors than mitigating evidence. Much research has focused on race, and indeed, White males as a group tend to be especially death-prone, particularly in cases involving Black defendants. By contrast, Black jurors are most receptive to mitigation, giving it greater weight in sentencing than White jurors. Victim race also plays a role with a death sentence being more likely when the victim is White.
One of the most robust findings about capital sentencing is that jurors often do not understand jury instructions about mitigation or aggravation, and they find it especially difficult to weigh them against each other. Worse yet for the convicted, when juror comprehension of instructions is low, jurors are more likely to give a death sentence.
References:
- Ashford, J. B. (with Kupferberg, M.). (2013). Death penalty mitigation. New York, NY: Oxford University Press.
- Devine, D. (2012). Jury decision making. New York, NY: New York University Press.
- DeMatteo, D., Murrie, D., Anumba, N., & Keesler, M. (2011). Forensic mental health assessments in death penalty cases. New York, NY: Oxford University Press.
- Furman v. Georgia (1972), 408 U.S. 238.