What is Mitigation?

There are multiple statutory definitions of mitigation. Many statutory factors focus on the circumstances of the crime (victim participation or consent; relatively minor participation on the part of the defendant; duress or domination) or the defendant’s mental state at the time of the offense (extreme mental or emotional disturbance; impaired capacity to appreciate right from wrong or to conform one’s conduct). The fundamental reality and bottom line is that mitigation has no clear and absolute boundaries, especially under the Eighth (8th) Amendment’s requirement of individualized selection in capital cases.

Despite the public’s acceptance of “Get Tough” on crime legislation, mitigation evidence and factors have continued to bring about mitigated sentences in the face of mandatory minimum sentencing guidelines.

The Role of a Mitigation Specialist

A mitigation specialist is an expert qualified by knowledge, skill, experience, and training as a criminal justice, mental health, or sociology professional. The role of a mitigation specialist is to present mitigating circumstances and factors to all players within the criminal justice system (prosecutors/probation officers/judges/jurors) in an effort to persuade all relevant parties that this particular individual’s case merits special consideration.

How is a Mitigation Evaluation Conducted?

A mitigation evaluation/investigation is essentially researching the past. It is a collected history of the individual’s life, beginning from birth through early childhood, continuing through school days and adolescence. The mitigation evaluation traces significant factors that may have affected the individual’s physical, social, emotional, and/or psychological development. There must be inquiry into the client’s childhood, upbringing, education, relationships, friendships, formative and traumatic experiences, personal psychology, and present feelings. The importance of this investigation, and the thoroughness and care with which it is conducted, cannot be overemphasized.

The purpose of collecting all of this information for the mitigation evaluation is to help powerful players within the criminal justice system (prosecutors/judges/juries/probation officers) to see the accused individual as an actual person with a unique family life, social history, and to make them look beyond the police report/charging document and understand the factors that have influenced how this individual arrived in their current predicament.