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What is Mitigation?
Mitigation is considered anything about the circumstances of the crime or things about the person that can reduce the charges or the sentence. A mitigation report may be used during negotiation or sentencing. It allows the defense attorney to effectively present facts about their clients so that a prosecutor may consider a more lenient plea and/or so that a judge can see the defendant as an individual and a human being worthy of redemption and a second chance..
These facts might include:
- Childhood abuse
- Drug use
- Exposure to violence
- Mental health issues
- Special education issues
- Family support
- Employment history
- Generational trauma
- The effects of racism
- Vocational training or secondary and post-secondary education lawyer or mitigation specialist will investigate the client’s background to determine whether personal trauma, other parts of their history, or their accomplishments could lower or mitigate their sentence.
For clients, this can be a difficult process. Mitigation counsel must review their entire life, including traumatic events and mistakes they made in the past. This can be upsetting, but the outcome is often worth it.
For a free legal consultation, call 215-515-3360
What is a Mitigation Specialist?
Mitigation specialists are not always attorneys. They act as independent experts that work on mitigation in these cases. They are responsible for information, analysis, testimony, and evidence when a judge or jury is trying to decide how to sentence someone in a criminal case.
When is Mitigation Used?
Depending on the courts, mitigation may occur 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.
A mitigation report will tell the prosecutor and/or judge why the client deserves community supervision or probation instead of jail or less jail then they are facing. Mitigation is essential in serious violent cases, in the cases of repeat offenders, and in federal matters.
Mitigation also means that, even if a conviction occurs in your case, hope still exists for a reduced sentence. A skilled lawyer will discuss how mitigation will factor into a client’s decision whether to plead or risk going to trial. This is especially crucial in cases where the penalty can mean decades to life in jail.
What are the Most Common “Mitigating Factors”?
Traditionally, courts will review the defendant’s history for information regarding how they generally act. If they have little history of the type of behavior that led to the charges, they may consider this when sentencing them.
Some mitigating factors include:
- Lack of prior criminal record
- Playing a small role in the crime
- Victim culpability
- Circumstances coinciding with the offense
- Mental/physical illness
- Genuine remorse
What are the Steps to the Mitigation Process?
Take a look at the following steps of the mitigation process.
First, a mitigation specialist will gather a series of records. After pulling together the needed documents, counsel needs to review and outline them, using them to show evidence of mitigating factors.
The second step involves interviewing family members, friends, community 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, even if a history of abusive trauma caused mental health problems that influenced the criminal activity, family members may not be willing to discuss the abuse. It could take several interviews until one family member admits to the drug, physical, sexual, or emotional abuse. A mitigation specialist is supposed to dig as deep as it takes to uncover mitigation for the client.
In these situations, a criminal defense lawyer may want to petition the court for a social worker or mental health counselor who can conduct the interviews with the appropriate training to protect everyone’s emotional health.
The third step may include hiring a psychological or neuropsychological expert. This expert will review the records and 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.
The mitigation specialist and/ or lawyer will put together the factors, and the social science research into a report for the prosecutor or judge. They may also include letters of support from family and friends, photos of the defendant with their family, and possibly even a video with the defendant and supporters speaking directly to the judge.
What Records are Necessary for a Mitigation Hearing?
A defense attorney can request various records to support and prove mitigation presented. In some cases, this could even include records previously kept from the public eye. Examples include:
- A juvenile file
- Probation files
- Mental health reports
- Mental hospitalization records
- Drug and alcohol treatment records
- Medical or hospital records showing illness or trauma
- Military records
- Employment records
- Disability records
- School records
- Prison records
- DHS or CYS records
Records, more than any other element of mitigation, provide specific details about dysfunction and trauma that family members might not openly discuss.
Moreover, they often 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 the Law Offices of M.J. Snyder, LLC, for a Free Consultation Today
If you believe mitigation may help reduce the sentence you face or have other questions about the potential outcome of your case, connect with the team from the Law Offices of M.J. Snyder, LLC, today.