Mitigation Is the Heart and Soul of Just and Merciful Sentencing

Vol. 42 No. 4


Edward Monahan and James J. Clark are editors of Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases (2017). Monahan is the chief public defender for the Commonwealth of Kentucky, and Clark is a professor and dean of the Florida State University College of Social Work.

Blindfolded Lady Justice is the best-known symbol of America’s commitment to protecting individual liberty. Yet, we know that justice requires wide-eyed perception of the contexts for behavior. 

All too often, the criminal justice system focuses exclusively on the facts of the crime while actively ignoring the person. Yet, fair, proportionate, and humane sentences require impartial perspectives, knowledge of the facts of the offense, and informed understanding of the person whose life or liberty is at stake. Fair sentences can be especially challenging to achieve for clients with mental illness and/or intellectual disabilities whose actions can present as especially unintelligible and frightening to others. 

The Role of the Criminal Defense Attorney and the Law of Punishment Proportionality

The constitutional mission of the criminal defense lawyer is to communicate who the person is by making the abstract concrete. National criminal defense and public defender standards recognize this responsibility, and the U.S. Supreme Court requires it.

It is clear in death penalty cases that the consideration of any “aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death” is a “constitutionally indispensable” requirement to guarantee reliability for this “qualitatively different” punishment. Decision makers must be in “possession of the fullest information possible concerning the defendant’s life and characteristics. . . .” Lockett v. Ohio, 438 U.S. 586, 603–04 (1978).

“Protection against disproportionate punishment is the central substantive guarantee of the Eighth Amendment. . . .” Montgomery v. Louisiana 136 S. Ct. 718, 732 (2016). And that constitutional proportionality protection applies to all criminal cases. As the Court said in Graham v. Florida, 560 U.S. 48, 59 (2010), the “concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’”

The law of punishment proportionality continues to evolve. In recent times, the U.S. Supreme Court has decided a series of cases, Graham-Miller v. Alabama, 132 S. Ct. 2455 (2012), and Montgomery, involving juveniles sentenced to life without parole. The Court explains that when the government seeks the severest penalties, the developmental level of the child, factors that reduce the child’s blameworthiness, and fact-based evaluations showing that the child’s behavior does not “reflect irreparable corruption” are relevant to punishment decisions. 

National standards require an individualized sentencing plan that includes information about the defendant’s background, as well as the circumstances of the offense that are mitigating and favorable to the defendant. 

The American Bar Association (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Revised Edition 2003) and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008) set forth the prevailing professional norms of practice in capital cases.

The National Legal Aid and Defender Association (NLADA) Performance Guidelines for Criminal Defense Representation (1994), Sentencing, Chapter 8, set forth the prevailing professional norms of practice in noncapital cases, as do the ABA Standards for Criminal Justice: Prosecution and Defense Function (4th ed. 2015), Standard 4-8.3 Sentencing, and Standards for Criminal Justice: Sentencing (3d ed. 1994).

Other than “the welcome resolution of a case by outright dismissal or acquittal, no single point in a criminal case is more consequential than sentencing.” Commentary to NLADA Guideline 8.1.

The Expansion of Individualized Noncapital Sentencing

The ball is in our court. “Individualized noncapital sentencing appears to be resurging and its expansion will have an impact on incarceration rates. The Supreme Court’s recent emphasis that the background of a convicted person is as important as the crime itself should serve as a clarion call for institutional change. Though resource and doctrinal constraints present challenges to a full reconciliation of capital and noncapital mitigation practice, a good deal of change can begin immediately by reorienting defense lawyers to take mitigation as seriously in noncapital cases as capital defense lawyers do, and to realign their practices and professional standards accordingly.” Miriam S. Gohara, “Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing,” 41 Am. J. Crim. L. 4, 85 (2013).

Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases (2017)—a recently released ABA book—presents demonstrably effective approaches for assembling a multi-professional defense team that recruits and uses expert mental health assistance, especially for clients with significant disabilities. 

For instance, many “litigation disputes over intellectual disability involve close cases. In such litigation, cultural competency provides both defense attorneys and prosecutors with a powerful tool in litigating the final few feet or inches in these sharply contested matters. While not an exclusive list, cultural competency is particularly salient (1) in initially identifying a defendant as a person who may be intellectually disabled, (2) in litigating the deficiency or lack thereof of the defendant’s intellectual functioning, (3) in litigating the deficiency or lack thereof in the defendant’s adaptive skills, and (4) in arguing these issues persuasively to a judge or jury. Cultural competency in close cases could mean the difference between life and death.” “Capital Punishment, Cultural Competency, and Litigating Intellectual Disability,” 42 U. Mem. L. Rev. 855, 905 (2012). The team makes it possible to thoroughly investigate the crime, to litigate fully complicated mental illness/intellectual disabilities issues, and to communicate the client as a person—i.e., telling the client’s story. 

The 19 authors of Tell the Client’s Story from Steve Bright and John Blume to Marla Sandys and Valerie Hardcastle are successful thinkers, innovators, and practitioners shaped in the red-hot cauldron of criminal defense litigation. They embrace complexity rather than shun it. Their guidance will help readers attain those sentences that Shakespeare saw as the noblest, where “mercy seasons justice.”

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Editorial Board

Chair Wilson Adam Schooley

Kristen Galles
Jason Miller
Serena Nowell
Claire Parins
Aram A. Schvey
Jason Sengheiser
Juan Thomas
Penny Wakefield
Stephen J. Wermiel
Alex Wohl

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Wilson Adam Schooley
Misty Thomas
Seth Miller

Section of Civil Rights and Social Justice

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Chair-elect Robert N. Weiner
Vice-Chair Wilson Adam Schooley
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Immediate Past Chair Lauren Stiller Rikleen
Section Director Tanya N. Terrell
Associate Director Paula Shapiro
Project Director (AIDS) and Director of the ABA Center for Human Rights Michael L. Pates
Project Director (Death Penalty Due Process Review) Misty Thomas
Section Administrator Jaime T. Campbell
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