How Can Mitigation Help Get Me The Lowest Possible Sentence?
People arrested for a crime often feel that the only two options are ”guilty of all charges” or “not guilty.”
In some cases, a post-guilty sentencing option exists. This option is called “mitigation” and has several specific steps to being used.
1. What Is mitigation?
Mitigation is a process used during negotiation or at sentencing that allows the defendant to effectively present facts about themselves which would lead the court to impose a lower sentence than was first considered.
These facts might include, childhood abuse, poverty, drug use, exposure to violence, mental health issues, special education issues, family support, employment history, vocational training or secondary and post-secondary education.
A lawyer and/or mitigation specialist will investigate their background to determine whether personal trauma can be considered for purposes of sentencing.
For clients, this can be a difficult process since mitigation counsel reviews the person’s entire life and that can be upsetting.
2. What Is A Mitigation Specialist?
Mitigation specialists are not always attorneys. They act as independent experts responsible for information, analysis, testimony, and evidence when a judge or jury is trying to decide how to sentence someone in a criminal case.
3. When Is Mitigation Used?
Mitigation is used in capital cases or serious violent and even non-violent crimes. Criminal statutes spend little time outlining factors that might support leniency in the sentencing process.
However, in Lockett v. Ohio, 438 U.S. 586 (1978), the court held that relevant character evidence of almost any nature could be used.
Mitigation seeks to lessen a sentence rather than set a person convicted of a crime free. This means that even if a conviction occurs, hope still exists, especially in cases where the sentence can mean life or death in jail.
4. What Are Mitigating Factors?
Traditionally, courts will review the defendant’s history for information regarding how they generally act.
Some mitigating factors would be lack of prior criminal record, playing a small role in the crime, victim culpability, past circumstances, circumstances coinciding with the offense, mental/physical illness, and genuine remorse.
5. What Are The Steps To The Mitigation Process?
First, a mitigation specialist will need to gather a series of records. After pulling together the needed documents, counsel needs to outline them and use them to show evidence of mitigating factors.
The second step involves interviewing family members and significant others. Unlike records which are more easily accessible through request, finding family members to discuss the inmate often proves difficult.
For example, if a past abusive trauma can be a reason for mental health problems that mitigate a crime, family members may not be willing to discuss the abuse.
Interviews may need to be done multiple times until one family member admits to the drug, physical, sexual, or emotional abuse.
In these situations, a criminal defense lawyer may want to petition the court for a social worker/counselor/therapist who can conduct the interviews with the appropriate training to protect everyone’s emotional health.
The third step includes hiring a psychological or neuropsychological expert. This expert will review not only review the records but also determine the necessity of additional testing or evaluation.
For example, some individuals convicted of crimes benefit more from having an intelligence test than a personality test.
This is another area in which a defense attorney can help. Since the attorney knows the client best, they can direct the expert towards the appropriate measures.
Finally, despite not being outlined specifically, a defendant’s good deeds may be reviewed. Some defendants care for elderly parents or are excellent parents to their own children.
Scholastic, athletic, or artistic accomplishments may also be reviewed. When combined with a traumatic childhood or life, these qualities may help keep someone from the death penalty.
6. What Records Must Be Obtained For A Mitigation Hearing?
Various records can be requested by a defense attorney trying to prove mitigation.
For example, despite being closed from the public, records such as a juvenile file, probation files, mental health reports, all mental hospitalizations, all drug and alcohol treatment records, medical or hospital records showing illness or trauma, military records, employment records, disability records, school records, letters to children and family, and prison records can be accessed.
Records, more than any other element of mitigation, provide specific details about dysfunction and trauma that family might not discuss.
Moreover, they can lead to witnesses who support the records and give the jury an emotional connection. Finally, records act as evidence themselves when introduced by a competent witness.
Contact Marni Jo Snyder Today
Looking for a committed defense counsel? Contact the offices of Marni Jo Snyder today for a free consultation at 215-515-3360.