What is Mitigation?

Mitigation is the law—it is rooted in the 6th and 8th Amendments of the United States Constitution. When a person's criminal charges qualify for the death penalty, they must be first convicted by a jury (or enter a guilty plea) and then a penalty phase begins. The penalty phase is the part of the trial in which a jury decides a defendant's sentence after hearing evidence in mitigation and aggravation.

Under the ABA Guidelines, mitigation is a “constitutional mandate that the sentencer consider all evidence in support of a sentence other than death.” This requires investigation of all aspects of the client’s character and history.  

As many point out, it is an impossible task to heal the wounds of a victim and their family. However, in supporting the life of those accused, the door is open to the possibility of accountability, reconciliation, and forgiveness. Mitigation as a means of achieving life-affirming verdicts, provides room for a broader understanding of the systemic and social dynamics that play a role in interpersonal harm.

Jurors in death penalty cases are handed an enormous responsibility and power of deciding whether or not someone who has taken life will live.  Our job as mitigation specialists is to illustrate to jurors the sum total of our client's life to date with a preview of their future. 

Who our clients are, where they came from, the burdens they carry, their life experiences and how those experiences impacted them and impacted their actions, whether they feel the weight of remorse, who they matter to, who will suffer if they are executed,  and what lies in store for them are all questions we answer in mitigation.  

Without our work, defendants would be denied their right to counsel. Without our work, decision-makers (jury, judge, and prosecutor) are prevented from considering the full picture—a violation of one's constitutional right.

Interviews

The ABA Supplementary Guidelines requires “in-person, face-to-face, one-on-one interviews with the client, the client’s family, and other witnesses who are familiar with the client’s life, history, or family history or who would support a sentence less than death.” 

Going back three generations, we interview everyone who holds a piece of our client’s story, including family, friends, teachers, classmates, coworkers, employers, neighbors, and loved ones.

Records

To support and guide the information in our interviews, we gather records and other documentation including school, medical, historical, employment, military, and social service records. The records serve the dual purpose of demonstrative evidence in court proceedings and filings.

Chronologies and Reports

Key events in our clients’ lives that are uncovered through interviews and records are compiled into a chronology that is relied on by both the medical and legal communities. FPJ staff may also draft summaries and reports of our clients’ narratives.

Presentation and Testimony

Individuals with specialized training or experience in a particular subject matter assist in the presentation of our cases to prosecutors, judges, and juries. These include medical doctors, mental health practitioners, anthropologists, and historians.

These expert witnesses testify to the issues in our cases, and their testimony is supplemented with the testimony of other witnesses familiar with our clients and their families.