is to lessen the jury’s perceived need, desire, or ratio-
nale to return a death verdict. Under the death penalty
statutes that govern most states, jurors are instructed
to “weigh” mitigating factors (which lessen the ten-
dency to punish with death) against aggravating fac-
tors (which increase that tendency).Nature and Scope
of Capital Mitigation
The scope of potential mitigation in a capital case is
quite broad. In fact, unlike aggravating factors, which
typically are limited in capital-sentencing statutes to
certain prescribed categories of evidence (such as
prior felony convictions), mitigating factors or evi-
dence has been repeatedly defined by the courts as
consisting of “anything proffered by the defendant in
support of a sentence less than death.”
Conceptually, mitigation falls into several broad
categories. Capital defense attorneys often seek to
introduce evidence and testimony that tend generally
to humanize the defendant—that is, to emphasize the
defendant’s personhood and establish points of com-
monality between the defendant and the jurors who sit
in judgment and decide his or her fate. Because many
jurors enter the courtroom with stereotypic views of
violent criminality, defense attorneys seek to overcome
preexisting tendencies to demonize or pathologize the
defendant in ways that will facilitate condemning him
or her to death. Mitigating evidence that humanizes the
defendant challenges the notion that extreme violence
is perpetrated only by dehumanized, anonymous fig-
ures or human monsters rather than real people with
very problematic and troubled lives.
Capital mitigation can provide jurors with a
broader and more nuanced view of the causes of vio-
lence and deepen their understanding of the person
whose life they are being asked to judge. In addition
to the introduction of mitigating evidence that gener-
ally humanizes the defendant, defense attorneys also
typically introduce background or social history tes-
timony that places the defendant’s life in a larger
social and developmental context. Background and
social history testimony can be used to explain the
various ways in which the nature and direction of a
defendant’s life have been shaped and influenced by
events and experiences that occurred earlier, often in
childhood. This may include childhood trauma,
parental mistreatment, and exposure to other devel-
opmental “risk factors” that are known to increase thelikelihood that someone will engage in criminal
behavior later in life.
The presentation of a mitigating social history in a
capital penalty trial also may include testimony about
broader community-based risk factors and larger soci-
ological forces to which the defendant was exposed
and that helped shape his or her life course. Poverty,
racism, “neighborhood disadvantage” (the surround-
ing environments characterized by unemployment,
instability, and crime), and other social contextual fac-
tors may help explain the patterns of criminal behav-
ior in which the defendant engaged. In that sense, they
represent a form of mitigation. Similarly, testimony
about mental health problems or disorders from which
the defendant suffered, his or her cognitive limitations
or deficits, or evidence of neurological abnormalities—
especially if they help account for criminal behavior—
are mitigating in nature. Capital mitigation also may
focus on the circumstances that led up to, or helped
precipitate, the capital crime itself. That is, showing
that the crime was the product of a unique set of situ-
ational forces or circumstances that are unlikely to
recur—at least in a prison setting (where a capital
defendant who is not sentenced to death will be
sent)—is a form of mitigation.
Another common but very different category of
mitigation includes testimony about a capital defen-
dant’s positive qualities, good deeds, or accomplish-
ments or the defendant’s potential to make useful
contributions in the future. Often this includes evi-
dence of the defendant’s positive (or, at least, unprob-
lematic) adjustment to prison in the past, testimony
about his or her potential to adjust well in the future,
and even evidence that the defendant is likely to make
useful contributions to prison life during his or her
long-term incarceration. In these instances, the nature
of the mitigating significance of the evidence derives
from demonstrating the complexity of human nature
(i.e., that even people who have done very bad things
have other positive qualities that are unrelated to their
criminality) and reminding jurors that even persons
convicted of a very serious violent crime can make
contributions to others that would be lost if they were
sentenced to death.
In sum, the structure of capital mitigation generally
involves the message that the defendant is a person,
there are reasons why his or her life took the course
that it did (ones that involve powerful psychological
and sociological forces over which the defendant had
little or no control), and the positive qualities andCapital Mitigation——— 61C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 61