WHAT IS MITIGATION?
Mitigation is an essential part of criminal defense. The dictionary defines mitigation as follows.
1. the act of mitigating, or lessening the force or intensity of something unpleasant, as wrath, pain, grief, or extreme circumstances: Social support is the most important factor in the mitigation of stress among adolescents.
2. the act of making a condition or consequence less severe: the mitigation of a punishment.
3. the process of becoming milder, gentler, or less severe.
4. a mitigating circumstance, event, or consequence.
The purpose of mitigation for the criminal defense team is to understand and present the client’s story in a sympathetic manner. Mitigation helps the defense team to prepare for a case, to defend a case, and in the event of a guilty verdict, to argue for a lighter and more restorative sentence.
WHEN IS THE BEST TIME TO PRESENT MITIGATION INFORMATION?
Presenting mitigating factors to the prosecution: There are times it is appropriate and advisable to share circumstances with the prosecution that are significant in mitigating or lightening the severity of a particular case. Given a certain set of circumstances, the prosecution may be more willing to offer a less severe offer for a plea bargain. The defense team needs to work closely with the client and be careful not to give information to the prosecution that could be used against the client.
Presenting mitigating factors during a trial: The better the defense team understands the client, the more convincing the defense attorney is in presenting the case for the client. The client may have had compelling reasons for being in the wrong place at the wrong time, or may have had limited understanding as to what actually took place. The client may have a pattern of behavior that is easily misunderstood by others. A defense attorney may use some of this background information as part of the defense as to why the client did not do the crime or the client did something without the knowledge or intent that may be required for a conviction.
Presenting mitigating factors in a sentencing hearing: In the process of determining a just sentence following a guilty verdict, there are a number of factors to consider to balance a desire to exact justice and a desire to possibly rehabilitate the convicted offender. Restorative justice seeks to maximize restitution for the victim, the offender, and the community. While the prosecution will emphasize the need for exacting justice, and the PSI (pre-sentence investigation) officer may emphasized the need to serve the needs of the community, the defense team will want to present mitigating circumstances to consider regarding the convicted offender.
WHAT IS NEEDED IN GATHERING MITIGATION INFORMATION?
Here are some questions the defense team needs to answer in effective mitigation:
- How did this individual get to this point as a convicted offender?
family history, history as a victim, medical records, school records, awards, activities
- What is the attitude of this individual regarding what happened?
- Is there realistic expectation that this person can change and become productive?
- What kind of support system is needed to get this person to such productivity?
- What programs are available to actually help this individual after sentencing?
- What programs has this person participated in from the time of arrest and conviction?
Negative Personal History: Has this person had some physiological, physical, or psychological struggles that may have played a part in bringing this person to doing what would otherwise not have been done? Documented incidents or treatments are powerful, particularly if there seems to be promise of improvement. Has this person had some traumatic circumstances such as the loss of loved ones or a personal tragedy such as rape, abuse, or ongoing bullying?
Positive Personal History: Has this person received awards or honors? Has this person had significant accomplishments such as in sports, music, clubs, or school?
Support Groups: Support groups are essential for most offenders to become something more, something better. A conviction can serve as a catalyst to remember and return to the shelter of a loving family, friends or groups. Pictures serve well in this situation. Gather some representative pictures of the client with family (especially children) and friends and church groups and school groups and treatment/rehab groups. Avoid photos of the client in compromising situations or using drugs or alcohol or wearing clothes that would be inappropriate or gang-related.
A Personal Letter: If a client is found guilty, a personal letter of regret or sorrow is good for a sentencing hearing. Typically this is written to the presiding judge or magistrate. Details of the case are not necessary and may be harmful in the case of any appeals. If the client is now taking responsibility, this letter should still remain general and focus on sorrow for the victims and a desire for forgiveness. This letter is not the place to blame others even if others were to blame. The letter needs to emphasize personal sorrow, personal regret and a heart-felt hope that healing can take place – for everyone involved. It is appropriate to ask for help at the end of the letter and express a genuine willingness to do whatever it takes to make things right, to make one’s self right.
Emotional/Spiritual Care-giver Support: If the client has been meeting with a counselor, a pastor, a religious worker, a program director, a mentor or anyone of the kind, this would be an excellent person to write a letter of support. Having the person(s) at a sentencing hearing is a powerful testimony of this person’s commitment toward the client as well. This person may even want to say something on the client’s behalf. It is a good idea for the defense mitigation team to meet with this person prior to the hearing to determine if this individual would help as a verbal witness.
Family & Friend Support: Family and friend support is fantastic! As many letters as possible show that the family and friends really care and want to be of service – they really want to help. The letters of support should tell about how each writer loves the client, some good things this person has done, and how the writer wants to help the client while in jail or prison and upon release. It is just about as important that the family and friends come to the sentencing hearing. They should dress nicely and avoid any trace of gang clothing. They should behave themselves with no sudden outburst or attempts to get the attention of the client. Never disrupt the dignity of the court. The judge does not like that.
Support Systems and Support Programs: From the perspective of the sentencing judge, the client may as well rot in jail rather than return to the streets and live a life of crime. What the judge or magistrate needs to see is that there is real help available that looks like it may actually work for this individual. The more detail and personal diagnostics that have already been completed, the better the chance the judge will seriously consider this alternative to incarceration. There is a risk for the judge here. The goal is to convince the judge that 1) this is a viable treatment or rehabilitative or educational program, and 2) the client is a serious and motivated candidate for this program. If the client has already been successful in treatment and rehab programs after being arrested, highlight this to the judge. This could be the very proof the judge needs that this client is worth the risk.