This article is excerpted from The Handbook for Mitigation: A Practical Guide for the Community around a Criminal Case, by Victoria Rusk, with permission of the author.
The Handbook for Mitigation: A Practical Guide for the Community Around a Criminal Case
By Victoria Rusk. Heart of Justice, LLC. 99 pages. $20.
The dictionary definition of mitigation is “making something less severe, dangerous, painful, harsh, or damaging.” In the context of a criminal case, that “something” is the sentence or punishment.
I became a professional mitigation specialist in Texas, a state with one of the highest rates of death sentences in the country. No matter how you feel about the death penalty or sentencing policy, we all have an interest in a fair criminal justice system.
This is where mitigation makes a difference. It balances the scales of justice.
For me, mitigation is really biography. We aren’t mitigating the crime—we can’t make that less painful, harsh, or damaging. In the business, we say, “We mitigate the person, not the crime.” We humanize the accused. We tell the story of their human experience, to present decision makers with the information and viewpoint they need to make a moral decision on punishment.
The “Why” Behind the Crime
Although criminal investigation has been around in some form for centuries, the modern concept of professional and independent crime investigations and forensics came about in the Twentieth Century. In the current system, prosecutors, police officers, and investigators on the side of the State are focused on finding out the who, what, where, when, and how. They look for the aggravating circumstances of crime, factors that are used by the prosecution to argue for a harsher sentence.
But what about the why behind the crime?
Mitigation investigations add that why to the fact investigation part of criminal defense — the who, what, where, and how. Mitigation specialists gather and present evidence of “mitigating factors” from the client’s whole life to secure a fair trial and sentencing for the client. The idea of mitigation is to ask a judge or jury to look beyond the immediate loss and consider the significant life circumstances leading up to a crime. The purpose is not to excuse the actions of an individual. It’s to help judges and juries determine a fair punishment based on a whole person.
History of Mitigation
Historically, mitigation has focused on death penalty cases. From the time the death penalty was restored until the early 2000s, attorneys didn’t really have any guidelines about how to investigate, present, or use mitigation evidence. A lack of mitigation resulted in ineffective assistance of counsel and unjust outcomes.
In a series of decisions in the 1970s, the Supreme Court ruled that decision makers, whether juries or judges, should consider mitigating factors:
The Supreme Court has ruled that in deciding between the death penalty and life in prison, the jury may consider any mitigating evidence a juror finds relevant. The jury is instructed to weigh the mitigating factors presented by the defense against the aggravating factors presented by the prosecution.
This ruling legally required defense teams to put the necessary information in front of the judge or jury for a just sentence for each person facing a sentence of death.
In 2003, the American Bar Association (ABA) published guidelines for capital murder cases (which have since been updated). The guidelines say the defense team must conduct a full investigation into the client’s entire life. And in June 2020, the Supreme Court found that an attorney for a death penalty case who did not investigate the client’s life, including his childhood, had provided ineffective assistance of counsel.
Here are the ABA’s guidelines, circa 2008, outlining the required elements of mitigation:
The defense team must conduct an ongoing, exhaustive, and independent investigation of every aspect of the client’s character, history, record and any circumstances of the offense, or other factors, which may provide a basis for a sentence less than death. The investigation into a client’s life history must survey a broad set of sources and includes, but is not limited to: medical history; complete prenatal, pediatric and adult health information; exposure to harmful substances in utero and in the environment; substance abuse history; mental health history; history of maltreatment and neglect; trauma history; educational history; employment and training history; military experience; multi-generational family history, genetic disorders and vulnerabilities, as well as multi- generational patterns of behavior; prior adult and juvenile correctional experience; religious, gender, sexual orientation, ethnic, racial, cultural and community influences; socio-economic, historical, and political factors.
Adopting ABA guidelines for capital cases was a major step to ensure that courts would provide a fair trial for the best attempt to prevent a death sentence. But mitigation can also help bring about just sentences in cases involving other criminal charges and potential punishments.
The Future of Mitigation
For the best possible outcome, it’s vital to seek out a mitigation specialist almost as soon as attorneys are appointed on a case. Most attorneys do not have the time or law school training to properly investigate and catalog mitigation for presentation at the penalty phase of a trial. But mitigation investigation should be a part of the defense plan from the beginning of a case.
In a perfect world, the legal field would be flooded with mitigation specialists who could perform all the duties listed in the ABA guidelines. In the real world, however, there are not yet enough mitigation specialists to fulfill the needs of every accused person charged with a crime. Lots of people have never even heard of mitigation and don’t know the specialty exists.
The ABA guidelines explain the skills a mitigation specialist must possess:
[M]itigation specialists must be able to identify, locate and interview relevant persons in a culturally competent manner that produces confidential, relevant, and reliable information. They must be skilled interviewers who can recognize and elicit information about mental health signs and symptoms, both prodromal and acute, that may manifest over the client’s lifetime. They must be able to establish rapport with witnesses, the client, the client’s family and significant others that will be sufficient to overcome barriers those individuals may have against the disclosure of sensitive information and to assist the client with the emotional impact of such disclosures. They must have the ability to advise counsel on appropriate mental health and other expert assistance.
Some judges and attorneys are beginning to recognize the importance of mitigation specialists in fair sentencing. But the realities of criminal justice are still catching up. Indigent defense is chronically short on resources. Public defenders’ offices are often underfunded, and courts’ willingness to allocate funds for defense teams vary widely from district to district. In some jurisdictions, judges are still learning about mitigation, and the defense team will have to justify the cost to them. The ultimate casualties are the accused who live in the crisis of poverty.
The bottom line is that to be effective, mitigation investigation should happen well before plea negotiations, trials, and sentencing — and the sooner the better. Mitigation discovers themes and important facts that influence and inform an effective defense strategy. But it can’t be done in haste at the eleventh hour. I hope the law is catching up to this reality.
About the author:
Mitigation specialist Victoria Rusk has criss-crossed Texas, and points beyond, notebook in hand, to interview clients and witnesses, to comb through stacks of medical records, or meet with experts and attorneys. She’s visited schools and state prisons, courthouses and jails, church gatherings and private backyards in search of the truth, with the highest stake facing her clients, the life sentence or death penalty. Rusk, who started her career in mitigation in 2011, has a passion for justice, a drive to empower attorneys and defendants, and a goal to see skilled mitigation become the norm. Rusk is also a former broadcast journalist, the owner of Heart of Justice and the creator of Mitigation University. Find out more about Victoria Rusk and The Handbook for Mitigation at www.heartofjustice.org.
Braga, A., Flynn, E, et al. “Moving the Work of Criminal Investigators Towards Crime Control,” New Perspectives in Policing, Harvard Kennedy School Program in Criminal Justice Policy and Management and the National Institute of Justice, March 2011. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/232994.pdf
Stetler, R. and Wendel, W. (2013). “The ABA Guidelines and the Norms of Capital Defense Representation.” Cornell Law Faculty Publications, 631. https://scholarship.law.cornell.edu/facpub/631/
“Mitigation in Capital Cases,” retrieved from https://capitalpunishmentincontext.org/issues/mitigation.
Weiss, Debra Cassens. “Defense lawyer who didn’t probe death-row client’s bad childhood was deficient, SCOTUS says.” ABA Journal. 15 June 2020, https://www.abajournal.com/news/article/capital-lawyer-who-didnt-probe-clients-bad-childhood-was-deficient-supreme-court-says
ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, GUIDELINE 10.11 – THE DEFENSE CASE: REQUISITE MITIGATION FUNCTIONS OF THE DEFENSE TEAM, 2008, https://www.americanbar.org/groups/committees/death_penalty_representation/resources/aba_guidelines/2008-supplementary-guidelines/2008-guideline-10-11/