A Texas mitigation specialist explains why working to save people from execution is the job she loves most.
Capital punishment in the U.S. may not have much longer to live.
This is arguable, of course—and is argued, hotly, in legislatures and living rooms all over America. Nineteen states have abolished the death penalty, while others are fighting legal battles over the use of lethal injection, after a series of botched executions.
While a majority of Americans still favor executing inmates convicted of murder, popular support for capital punishment is slowly eroding. Many Americans polled by Pew have expressed a growing unease with the practice—citing the higher cost of adjudicating capital cases, the possibility of racial bias in deciding who is sentenced to death, and the risk that an innocent person may be executed. (More than 150 death row inmates have been exonerated in the past 40 years.)
For those and other reasons, fewer people are executed every year in the U.S.—from a peak of 98 executions in 1999 to only 14 last year. And juries are handing down fewer death sentences.
If Nicole Van Toorn had her way, juries would never sentence another person to death. For her, the work is personal. Van Toorn is an unapologetic partisan in the national debate about capital punishment, and as a mitigation specialist based in Texas (which has executed more people than any other state since 1976), she feels that she is fighting on the front lines. As part of the legal defense team on capital and post-conviction cases, she’s part investigator and part social worker. It’s her job to dig into her clients’ histories and tell their life stories to juries who are deciding whether they deserve to die for their crimes.
In part two of this series, Pursuit editor Kim Green asked Van Toorn what motivates her to do the long, hard work of mitigation investigation, and why she loves the job.
KIM: What kind of mindset do you need to do this work?
NICOLE: Open-minded. Not judgmental. Always looking for the good in people. Able to deal with the fact that some of the clients make it a thankless job, but nonetheless, you’re able to find your own reward in it.
A self-starter. A go-getter. Because in an investigation like this, there’s always one person or one more piece of paper that can be collected, another interview to be done. So you just have to be a very self-motivated person, and like people, and not be adverse to prison visits.
You can’t appear to be disturbed by the physical surroundings, either—say, if they live in a filthy home, and you’re sitting there taking notes on a notepad, and a roach runs across it. These things happen, which is why I say it’s often likened to social work. That also gives you firsthand insight also into what living conditions your client may have grown up in.
Speaking of cockroaches, I did go to lovely Hawaii recently. There are government housing projects there too. The first time I had visited them there, there were not one, but two cockroaches in my bag after I left the interview. I dumped my bag, and got the cockroaches out of the car, and then washed up before I went to the restaurant for lunch.
KIM: Besides pest control, what other kinds of work compare to mitigation investigations?
NICOLE: I would say it’s closely related to social work. You can’t be a judgmental person. You have to be open. Sure, you can disagree with what they’ve done, but just viewing it through their eyes, how they came to the situation, and they didn’t see any other option for doing something else.
Sometimes there is the ethnic, racial, or social class disparity between you and your client, or your client’s family. Again, you’re not judgmental, and you’re willing to listen to everything.
KIM: What’s your strategy for building rapport with witnesses?
You get to know the witness, at their convenience and not pushy, and you get them comfortable with wanting to even talk to you about your client. Sometimes this may be repeat interviews, hours long. Eventually, hopefully, they will open up and admit to some abuse, or abuse by other family members, or something that someone else hadn’t told you. Often, you’ll find yourself coming back again to the same witnesses after you’ve learned some new tidbit of information from someone else.
One way to build trust with them is not to share stories they’ve told about other family members. They and the rest of the family may not want to talk to you at all if you share information between folks that someone wasn’t aware of. You have to be careful with those family dynamics. That can be really tricky.
Of course, you can spend a lot of hours interviewing them, and they may not end up opening up to you. I don’t know, I find that I’m pretty successful just with not being judgmental, and just being open and willing to listen to whatever they want to talk about.
KIM: Why does this work matter?
NICOLE: This is my own opinion, but who are we to say whether someone should have the right to live or die? I think life without parole should be the maximum sentence anyone could receive, ever. I think I’ve always felt that way.
There are lots of laws that have been passed with regard to not executing the mentally retarded. We’re talking about grown men that have the minds of children, and we’re executing them in many states. A lot of states, of course, have gotten rid of the death penalty, and so the ultimate sentence that someone can receive in one of those states would be life without parole.
There’s also another factor to the death penalty that the average person doesn’t know: the financial impact to taxpayers. If people knew how much it costs to pursue a death penalty case versus life without parole, it’s a significant difference. People don’t realize that it’s their tax dollars paying for all the effort that goes into seeking the death penalty. That’s just another facet of the argument.
KIM: What bothers you the most about capital punishment?
It’s an unfair system. Sometimes there is no rhyme or reason to it—like sometimes there are co-defendants in a case, and one will receive the death penalty, and one will not. Sometimes, the person who didn’t receive the death penalty would be the one that actually killed the victim(s). The other person was just a participant, but maybe they had poor representation, whether from the public defender office or an appointed private attorney. There’s just no consistency about it.
One of the biggest problems in capital defense is that the funding often isn’t there for these people, because the courts won’t provide it—even now with all the work that’s been done by the American Bar Association standards, where they’re required to have two attorneys for their defense. Not only a fact investigator, but also a mitigation specialist, and yet sometimes the funding is even there. Or sometimes you will have the funding, and the attorneys don’t use it to employ an investigator and/or mitigation specialist. So these things simply aren’t done. It is amazing what the client is entitled to, and what they don’t receive.
Whenever you have a case where there’s great mitigation, but it’s never been done, only to find it out in the appellate stage that, “Wow. Why wasn’t this presented at trial? It could’ve made a difference and saved all this work on the back end, and all these years that the client’s been on death row and going through appeal after appeal.”
And another perspective: the families of the victims don’t receive any real closure for years and years and years. It’s never-ending torture for them as well.
KIM: Whatever a person’s stance on the death penalty, you can’t deny that there are problems with the system. It’s always surprising to hear people say, about a person on death row, “Well, they were convicted.” They don’t believe that mistakes are made, or that innocent people get executed. One person even said, “Nobody that you know is ever going to be in that situation anyway.” I don’t know, maybe he was kidding? But still.
NICOLE: The interesting thing is, is you never know. You could know someone in that situation. I have had a couple of private pay clients, meaning they or their family had the resources to pay for private defense versus being assigned a public defender or another attorney from the CJA panel (private attorneys assigned by the courts to represent the indigent). That just goes to show that they could come from any social class. Someone you know that is innocent, could be falsely accused.
Once someone is executed, that’s a permanent situation. So if you’ve made a mistake, it’s too late.
That’s the reason for the existence of so many innocence projects in different states—so many of these guys were arrested and convicted, who they discovered after the fact were innocent. The numbers are now a few hundred, at least, around the country that have been found innocent.
Thankfully, for some it was discovered before they were executed. But there are those that it’s an after the fact situation, and then what can you do?
That’s the one other big drawback about the death penalty: Once someone is executed, that’s a permanent situation. So if you’ve made a mistake, it’s too late.
KIM: I have a pen pal in the women’s prison in Nashville. She’ll never get out, but she writes letters, she reads books, she writes poetry. She got an associate’s degree. She worships … Her life is there, in prison. She has a life. Now, for the rest of us out here it may not seem like a life, but to her it’s the one that she has, and she wants to do something with it. Better that, she thinks, than not being alive at all. I’d love to hear your thoughts on that.
NICOLE: Ultimately, if someone is living the rest of their life in prison, and it’s 30 plus 40 years that they have to go, that’s, to me, more punishment than the death penalty because they’re living it every day. Some people actually are somewhat rehabilitated in there, and they do good works in prison. Now, that’s certainly not everybody—some of them do continue to get in trouble in prison. But some conform very well, and they adapt and are a good influence on other inmates.
I have to say, believe it or not, some of my clients are very likable people. Quite a sense of humor some of them, despite their conditions that they live in.
In prison a lot of them actually mentor younger ones—some inmates that are going to get out—and then they do end up making something of themselves on the outside when they get out.
With a lot of these clients, you find that if it weren’t for this once instance of they were high on drugs, or whatever the case, they would never have been in this situation. If they had it to do all over again, they wouldn’t be there. But unfortunate as it is, that’s where they are, but at least many are making the best of it. There is something good at the core of people, so I enjoy it.
KIM: I’m sure you probably don’t win a lot of the time, but you still do it anyway. How do you keep going knowing that a lot of your efforts probably don’t pay off in the way you want them to?
NICOLE: You can liken it to the voting system in your country. You’re only one vote, and what does it matter?
I’m only one person. I’m only one investigator, but you take it case by case and individual by individual. What you can do for this one person, or what you can do for their family? Because as the mitigation specialist, I get to know their family, generally, better than anyone else.
I’m only one investigator, but you take it case by case and individual by individual.
You have to be cut out for the work, and not get discouraged by what seems like a loss. It’s never ending. I’ve been on cases that I was assigned ten years ago, and there’s still no resolution. You just have to have the mindset for it.
Like social work—you see these poor kids living in conditions of squalor, or someone being abused, and you want them out of the home. Or they’re returned to their parents only to be abused again. You just have to remain optimistic and always be upbeat.
Yes, it does kind of wear on your sometimes, but I wouldn’t do anything else. I wouldn’t have any other career.
The Mitigator (The New Yorker)
Inside the Efforts to Halt Arizona’s Two-Hour Execution of Joseph Wood (Time.com)
Every Execution in U.S. History in a Single Chart (Time.com)
Less Support for Death Penalty, Especially Among Democrats (Pew Research Center)
Facts About the Death Penalty (Death Penalty Information Center)
States With and Without the Death Penalty (Death Penalty Information Center)