Capital Mitigation

Capital mitigation consists of evidence that is presented in a death penalty trial to obtain a sentence other than death. In the bifurcated trial process that characterizes modern capital cases (in which a second penalty or sentencing phase occurs only if the defendant has been convicted of a crime for which the death penalty may be imposed), mitigation typically is introduced in the second stage of the trial. Its purpose [Page 61]is to lessen the jury's perceived need, desire, or rationale to return a death verdict. Under the death penalty statutes that govern most states, jurors are instructed to “weigh” mitigating factors (which lessen the tendency to punish with death) against aggravating factors (which increase that tendency).