Capital Mitigation

Nature and Scope of Capital Mitigation

The scope of potential mitigation in a capital case is quite broad. In fact, unlike aggravating factors, which typically are limited in capital-sentencing statutes to certain prescribed categories of evidence (such as prior felony convictions), mitigating factors or evidence has been repeatedly defined by the courts as consisting of “anything proffered by the defendant in support of a sentence less than death.”

Conceptually, mitigation falls into several broad categories. Capital defense attorneys often seek to introduce evidence and testimony that tend generally to humanize the defendant—that is, to emphasize the defendant's personhood and establish points of commonality between the defendant and the jurors who sit in judgment and decide his or her fate. Because many jurors enter the courtroom with stereotypic views of violent criminality, defense attorneys seek to overcome preexisting tendencies to demonize or pathologize the defendant in ways that will facilitate condemning him or her to death. Mitigating evidence that humanizes the defendant challenges the notion that extreme violence is perpetrated only by dehumanized, anonymous figures or human monsters rather than real people with very problematic and troubled lives.

Capital mitigation can provide jurors with a broader and more nuanced view of the causes of violence and deepen their understanding of the person whose life they are being asked to judge. In addition to the introduction of mitigating evidence that generally humanizes the defendant, defense attorneys also typically introduce background or social history testimony that places the defendant's life in a larger social and developmental context. Background and social history testimony can be used to explain the various ways in which the nature and direction of a defendant's life have been shaped and influenced by events and experiences that occurred earlier, often in childhood. This may include childhood trauma, parental mistreatment, and exposure to other developmental “risk factors” that are known to increase the likelihood that someone will engage in criminal behavior later in life.

The presentation of a mitigating social history in a capital penalty trial also may include testimony about broader community-based risk factors and larger sociological forces to which the defendant was exposed and that helped shape his or her life course. Poverty, racism, “neighborhood disadvantage” (the surrounding environments characterized by unemployment, instability, and crime), and other social contextual factors may help explain the patterns of criminal behavior in which the defendant engaged. In that sense, they represent a form of mitigation. Similarly, testimony about mental health problems or disorders from which the defendant suffered, his or her cognitive limitations or deficits, or evidence of neurological abnormalities—especially if they help account for criminal behavior—are mitigating in nature. Capital mitigation also may focus on the circumstances that led up to, or helped precipitate, the capital crime itself. That is, showing that the crime was the product of a unique set of situational forces or circumstances that are unlikely to recur—at least in a prison setting (where a capital defendant who is not sentenced to death will be sent)—is a form of mitigation.

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