About Mitigation
Mitigation specialists have traditionally worked in capital cases alongside a team of lawyers with clients facing the death penalty. The U.S. Supreme Court has discussed the topic of mitigation in numerous cases, including, Gregg v. Georgia, 428 U.S. 153 (1976), Woodson v. North Carolina, 428 U.S. 280 (1976), Lockett v. Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S. 104 (1982), Skipper v. South Carolina, 476 U.S. 1 (1986), California v. Brown, 479 U.S. 538 (1987), Penry v. Lynaugh, 492 U.S. 302 (1989), Williams v. Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla v. Beard, 545 U.S. 374 (2005). In 2003, the American Bar Association (ABA) published its Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, which establishes the practice standards to ensure high quality representation for those facing the death-penalty. Guideline 4.1 states, "The defense team should consist of no fewer than two attorneys . . . an investigator, and a mitigation specialist." The mitigation specialist can do the following: (1) Compile a comprehensive and well-documented life-history of the client based on an exhaustive investigation; (2) analyze the significance of the information for developmental impact on the client's personality and behavior; (3) build mitigating themes; (4) identify the need for experts and helps to locate them; (5) provide information to experts for competent and reliable evaluations; and (6) help the defense team to develop a comprehensive and cohesive case in mitigation. Id. at 33. The investigation should include, but is not limited to: (1) medical history, (2) family and social history, (3) educational history, (4) military service, (5) employment and training history, and (6) prior juvenile and adult correctional experience with respect to the client. ABA, Guideline 10.7, Commentary at 81.
Nevertheless, the U.S. Supreme Court has recognized that mitigation evidence is "potentially infinite" and even "anything under the sun." See Ayers v. Belmonte, 127 S. Ct. 469, 478 (2006); Locket v. Ohio, 438 U.S. 586, 631 (1978) (Rehnquist concurring in part and dissenting in part). The Court has long held that the need for competent counsel may be greater at sentencing than in the determination of guilt because at sentencing "a judge usually moves within a large area of discretion and doubts . . . . Even the most self-assured judge may well want to bring to his aid every consideration that counsel for the accused can appropriately urge." Carter v. Illinois, 329 U.S. 173, 178 (1946). Moreover, as noted by Hugh Mundy in his article, It's Not Just for Death Cases Anymore: How Capital Mitigation Investigation Can Enhance Experiential Learning and Improve Advocacy in Law School Non-Capital Criminal Defense Clinics, 50 Cal. W. L. Rev. 31 (2013), "The professional and constitutional obligations of defense counsel in non-capital sentencing hearings have taken on heightened significance since the Supreme Court's 2005 ruling in United States v. Booker, 543 U.S. 220 (2005)." As Mundy wrote, "Interestingly, its most recent, and perhaps strongest affirmation, came in two non-capital cases, Miller v. Alabama and Jackson v. Hobbs, 132 S. Ct. 2455 (2012). In these companion consolidated cases, the Court highlighted the importance of an in-depth presentation of the offender's background and the circumstances of his offense in mitigation of his sentence." Id. at 2467-68.
Today, the importance of uncovering and developing mitigation in all criminal cases, state or federal, cannot be understated. Every attorney wants to be the most effective lawyer that he or she can be for clients. Every client deserves the chance to have his or her story told to the person who can influence the outcome of the case, whether that is the attorney, the prosecutor, the judge, or the jury.