Mitigation in Capital Cases

Purpose of Mitigation
Key Supreme Court Decisions Addressing Mitigation in Capital Cases
Jurors’ Views of Mitigation: The Capital Jury Project
The Role of Mitigation in the Aileen Wuornos Case
Related Links

Mitigation, also referred to as "mitigating factors" or "mitigating evidence," is evidence the defense can present in the sentencing phase of a capital trial to provide reasons why the defendant should not receive a death sentence. This evidence, which can include mental problems, remorse, youth, childhood abuse or neglect, a minor role in the homicide, or the absence of a prior criminal record, may reduce the culpability of the defendant in the killing or may provide other reasons for preferring a life sentence to death. 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.

Purpose of Mitigation

The death penalty is intended only for “the worst of the worst” crimes. In order for juries to determine whether a particular defendant deserves a sentence of death, they must weigh evidence that this murderer is actually one of the worst of the worst (the aggravating factors) against the reasons for sparing him or her (the mitigating factors). States vary in the specific circumstances they define as aggravating factors, but generally include murders committed during the commission of another crime, murders committed for monetary gain, murders of police officers, multiple murders, or other murders considered to be particularly aggravated. Mitigating factors frequently address the defendant’s background, including a history of mental illness or intellectual disability, previous trauma suffered by the defendant, or the absence of a prior criminal record. A defendant who has faced life with physical or emotional handicaps may be deemed less fully responsible for his criminal actions.

As mitigation has become recognized as a critical part of a capital trial, defense attorneys have turned to mitigation specialists to investigate defendants' backgrounds. Mitigation specialists examine defendants' family history, medical history, educational and employment background, and any other element of an individual's life that may convince the jury to return a sentence other than death. With this information, they assist defense counsel in presenting a coherent case for mitigation. The role of the mitigation specialist is so central to a client's defense that the American Bar Association includes them in their guidelines on the defense in death penalty cases: "The defense team should consist of no fewer than two attorneys…an investigator, and a mitigation specialist." (Guideline 4.1, page 952) In the commentary to this guideline, the ABA says,

"A mitigation specialist is also an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf." (Commentary on Guideline 4.1, page 959)

The defense team's mitigating evidence is presented during the penalty phase of the trial, after the prosecution's aggravating evidence. Juries are instructed to consider both sets of factors, but not simply to count the number of factors on each side and determine the sentence based on whether there are more aggravating or mitigating factors. Rather, jurors are expected to use their own judgment in deciding which factors carry greater weight. If the aggravating circumstances are stronger, jurors may choose a death sentence, but if the mitigating circumstances are more compelling, they must choose a life sentence.

Key Supreme Court Decisions Addressing Mitigation in Capital Cases

When the Supreme Court struck down the death penalty in Furman v. Georgia (1972), it expressed concern that death sentences were being imposed arbitrarily and capriciously. In response to Furman, some states changed their sentencing procedures so only aggravating factors specifically listed in the judge's instructions could be considered in deciding whether a murderer deserved death, and these aggravating factors must be weighed against mitigating factors. This was designed to eliminate racial prejudice and other idiosyncratic or discriminatory influences on jurors' sentencing decision.

In Gregg v. Georgia (1976), the Court ruled that a bifurcated trial, with separate guilt and sentencing decisions, in which juries were given instructional evidence on how to approach their sentencing decision, could address the sentencing concerns raised in Furman. During the sentencing phase, aggravating and mitigating circumstances would be considered, and the jury would be “apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." (Gregg v. Georgia)  The jury would be given instructions that allow it to hand down a death sentence only when specific requirements were met, including a finding of one or more factors that heighten the gravity of the crime compared with other potential capital crimes ("aggravating circumstances") and a consideration of mitigating factors that might offset the aggravation. In spelling out these requirements, the statutes of most death-penalty states today follow the lead of the Georgia procedure that the Supreme Court held constitutional in Gregg, which were described this way: "The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy… but it must find a statutory aggravating circumstance before recommending a sentence of death.” (Gregg v. Georgia)

The case of Lockett v. Ohio (1978) emphasized the importance of mitigation in capital trials. Sandra Lockett was charged with "aggravated murder with specifications" for her involvement in planning and facilitating the robbery of a pawnshop that resulted in the murder of the pawnbroker. According to one of the other suspects in the case, Lockett drove the gunman away from the crime scene, concealed the murder weapon, and hid two suspects from police. The jury was instructed that someone who "purposely aids, helps, associates…herself with another for the purpose of committing a crime is regarded as if…she were the principal offender and is just as guilty as if the person performed every act constituting the offense." The jury found Lockett guilty. Under Ohio law at the time, the death penalty was mandatory for those found guilty of aggravated murder unless one of three specified mitigating factors was found:

1. the victim induced or facilitated the offense;
2. it is unlikely the offense would have been committed but for the fact that the offender was under duress, coercion, or strong provocation; or
3. the offense was primarily the product of the offender's psychosis or mental deficiency.

The jury could not consider Lockett's relatively minor involvement in the crime, or the fact that a psychologist "reported that 'her prognosis for rehabilitation' if returned to society was favorable." Rather, the law required a death sentence, regardless of these factors.

The Court ruled that “the limited range of mitigating circumstances that may be considered” in Ohio violated the Eighth and Fourteenth Amendments. Juries should be allowed to consider “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.”

In Walton v. Arizona (1990), the Court again addressed the issue of mitigation. Jeffrey Walton was convicted and sentenced to death for the robbery, kidnapping, and murder of Thomas Powell. Under Arizona law, the sentencing hearing was conducted before a judge, rather than a jury. The judge found the aggravating circumstances that the murder was "especially heinous, cruel, or depraved" and that it was committed for pecuniary gain. As mitigation, Walton presented a psychiatrist's testimony on Walton's history of substance abuse and possible childhood sexual abuse. Walton's youth (he was 20 years old at the time of sentencing) was also presented as mitigation. The Court upheld Arizona's sentencing procedures, ruling that sentencing by a judge did not violate the Sixth Amendment, and that "Walton's Eighth and Fourteenth Amendment rights have not been violated by placing on him the burden of proving by a preponderance of the evidence the existence of mitigating circumstances."

While the majority upheld the mitigation standards articulated in Lockett, Justice Antonin Scalia wrote a concurring opinion that questioned whether allowing broad mitigating evidence made the application of the death penalty more arbitrary. He contended that “randomness and ‘freakishness’ are even more evident” under a system that allows consideration of all mitigating evidence than they were under the system ruled unconstitutional in Furman. He argued Lockett and related rulings actually contradict the Furman decision because they introduced more arbitrariness into the capital sentencing system by allowing juries to consider any evidence of mitigation offered by the defense. Despite Justice Scalia’s concerns, a broad range of mitigation is still permitted under the Lockett ruling.

Jurors’ Views of Mitigation: The Capital Jury Project

(see also: Jury Instructions)

Initiated in 1991, the Capital Jury Project was a research project that conducted interviews with 1198 jurors from capital trials. The jurors were asked about their thoughts and experiences throughout the trial, including the sentencing phase. The project found jurors’ beliefs about mitigating factors often made them unwilling to consider these factors. Many jurors believed mitigating factors did not excuse the crime, and therefore should not be considered at sentencing.

In addition, jurors misunderstood the jury instructions on considering mitigating factors. More than half of the jurors interviewed believed mitigating factors could be considered only if all jurors agreed, when in fact, a single juror may properly take into account any mitigating circumstance regardless of the opinion of other jurors. Moreover, properly understood, mitigation is not intended to be an excuse for the crime, but rather a reason to spare the defendant's life.

The issue of jurors misunderstanding their instructions was raised in the U.S. Supreme Court case of Weeks v. Angelone (2000). During Weeks' trial, the jury asked the judge for clarification on two points. First, the jury asked, “Does the sentence of life imprisonment in the State of Virginia have the possibility of parole, and if so, what conditions must be met to receive parole?” The judge told the jury, “You should impose such punishment as you feel is just under the evidence, and within the instructions of the Court. You are not to concern yourselves with what may happen afterwards.”

A few hours later, after further deliberation, the jury asked a second question: “If we believe that Lonnie Weeks, Jr. is guilty of at least 1 of the alternatives, then is it our duty as a jury to issue the death penalty? Or must we decide (even though he is guilty of one of the alternatives) whether or not to issue the death penalty, or one of the life sentences? What is the Rule? Please clarify?”

The judge wrote the following response: “See second paragraph of Instruction #2 (Beginning with ‘If you find from … …’).” The judge explained to counsel his answer to the jury’s question:

“In instruction number 2 that was given to them, in the second paragraph, it reads, ‘If you find from the evidence that the Commonwealth has proved, beyond a reasonable doubt, either of the two alternatives, and as to that alternative, you are unanimous, then you may fix the punishment of the defendant at death, or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at imprisonment for life, or imprisonment for life with a fine not to exceed $100,000.’

The defense objected to both responses, and asked the judge to clarify the sentencing instructions to the jury, but he refused. The jury handed down a sentence of death. The Supreme Court upheld Weeks' conviction and sentence, saying,

"A jury is presumed to follow its instructions. Similarly, a jury is presumed to understand a judge’s answer to its question. Weeks’ jury did not inform the court that after reading the relevant paragraph of the instruction, it still did not understand its role…To presume otherwise would require reversal every time a jury inquires about a matter of constitutional significance, regardless of the judge’s answer." (Weeks v. Angelone (2000))

The Role of Mitigation in the Aileen Wuornos Case

The mitigating evidence presented in Aileen Wuornos’ trial focused on her traumatic childhood and mental illness. Wuornos was abandoned by her parents and raised by her maternal grandparents. Her father committed suicide while incarcerated for child molestation. She was physically and sexually abused throughout her childhood and teenage years. At age 15, following the death of her grandmother, Wuornos was kicked out of her grandfather’s house and became a ward of the court. Three psychologists testified that Wuornos suffered from Borderline Personality Disorder, likely brought on by her traumatic upbringing.

The jury’s sentencing recommendation found only one mitigating factor: the defendant suffered from Borderline Personality Disorder. The judge, however, found five mitigating factors: (1) Wuornos suffered antisocial and borderline personality disorders; (2) she may have been physically abused as a child; (3) her natural father and grandfather committed suicide; (4) her grandmother died an alcoholic; and (5) her mother abandoned her as an infant. Despite finding these additional mitigating factors, the judge followed the jury’s recommendation and sentenced Wuornos to death.

Questions for Discussion

• Why might jurors dismiss mitigating factors such as childhood abuse or alcoholism?
• Some people argue that many people who have horrible childhoods nonetheless do not become criminals. How would you respond to this argument? Do you think this kind of information is irrelevant to the jury’s decision?
• There is considerable evidence that jurors don’t understand how to use aggravating and mitigating factors in their decision. Do you think the Supreme Court’s response in Weeks v. Angelone was right?  How would you have decided the case?
• Do you agree with the reasoning in Justice Scalia’s concurrence in Walton v. Arizona that allowing mitigating evidence increases the arbitrariness of the death penalty system? Do you think the risk of arbitrariness outweighs providing the opportunity to seek leniency or mercy in a capital case?
• List the mitigating factors you think are most persuasive in choosing life without parole instead of death, and explain why you selected them.
• How would you change the sentencing instructions given to juries in order to make the instructions clearer?
• If you had been a juror in Aileen Wuornos's case, would you have found her background to be a mitigating factor? If so, would you have sentenced her to death?

Related Issues

Representation in Capital Cases
Jury Instructions: Jurors' Understandings and Misunderstanding
Legal Remedies Available to Death Sentenced Individuals
Prosecutorial Discretion
The Case of Aileen Wuornos