use such judgments to decide whether the defendant
will receive the death penalty or a life sentence. During
the sentencing phase, the prosecution presents the rele-
vant aggravating factors of the case, while the defense
is charged with the duty of providing mitigation factors.
Although no standard model exists to offer procedures
for the investigation of mitigating factors, scholars,
clinicians, and researchers have offered recommen-
dations concerning the common types of information
needed and the appropriate ways to present it to the
jury. In all cases, a mitigation evaluation is conducted
with the goal of humanizing the defendant to the jury,
in the hope that they will not recommend the death
penalty.
During the penalty phase of a capital offense trial,
the triers of fact (i.e., the judge or jury depending on
the state) are presented with two types of information:
(1) aggravating factors(i.e., facts from the case that
make it especially serious or heinous) and (2) mitigat-
ing factors(i.e., facts from the case that may reduce
the defendant’s moral culpability). As set forth in Ring
v. Arizona(2002), to come forward with a recommen-
dation for death, the jury must first be convinced
beyond a reasonable doubt that the state has met its
burden of proof with respect to the presence of one or
more aggravating factors. Once this has been done,
the defense is required to present mitigating factors
with the goal of convincing the trier of fact that this
individual does not deserve the penalty of death. The
driving force behind this practice is the U.S. Supreme
Court’s assertion in Furman v. Georgia(1972) that
sentences in capital cases should be individualized
and should not be disproportionate or inappropriate
given the mitigating factors in the case.
Aggravating factors in a capital case are often read-
ily apparent from the circumstances of the crime. Like
other states, the state of Texas has statutory aggravat-
ing factors that are precisely defined. Three examples
of the criteria set forth by the Texas Penal Code are
(a) if the person murders more than one person during
the same criminal transaction; (b) if the person mur-
ders an individual under 6 years of age; and (c) if the
person intentionally commits a murder in the course
of committing (or attempting to commit) kidnapping,
burglary, robbery, aggravated sexual assault, arson, or
obstruction or retaliation.
In contrast to aggravating factors, which are estab-
lished by statute, mitigating factors can be anything the
defense chooses to present that it believes may sway
the trier of fact to determine that life without parole isthe proper and just sentence in the particular case. The
following list provides just a few examples of the most
common mitigating factors that are brought forward in
a capital trial: history of neglect and/or abuse during
the formative years, the presence of a mental illness,
youthfulness, and a limited history of involvement with
the legal system. It was in Lockett v. Ohio (1978) that
the U.S. Supreme Court decided that limiting the type
and amount of mitigating factors that can be presented
to the trier of fact is unconstitutional.
When deciding the sentence for a defendant who
has been found guilty, jurors are asked to weigh the
aggravating circumstances against the mitigating cir-
cumstances of the case. Each state has its own laws
regarding how jurors are instructed to weigh aggravat-
ing and mitigating circumstances, but in all states,
each individual juror must weigh the circumstances
and decide whether the defendant is sentenced to
death or life in prison. In many states, the death
penalty can be imposed only if the jury returns a unan-
imous decision.
With respect to the process of conducting a mitiga-
tion evaluation, the onus is on the defense team to con-
duct a thorough investigation of all possible mitigating
factors. To complete such an investigation, it is recom-
mended that the defense team hire one or more profes-
sionals to carry out the various tasks required for the
investigation and presentation of mitigating circum-
stances. In Wiggins v. Smith (2003),the U.S. Supreme
Court ruled that failure on the part of the defense team
to properly investigate and introduce mitigating evi-
dence can result in a finding of ineffective assistance of
counsel, leaving open the possibility that the verdict
will be overturned on appeal.
Perhaps the most traditional form of investigation
is that carried out by a professional known as a mitiga-
tion specialist. Although social workers often serve in
this role, other professionals, such as paralegals, legal
researchers,and attorneys, also work in this capacity.
Regardless of the profession, the role of the mitigation
specialist requires a commitment to uncover all possible
mitigating factors, and to do this, it is imperative that
he or she has a wide repertoire of knowledge and skills.
For example, it is expected that the specialist be well
versed in the field of human development and be skilled
in the areas of data collection, interviewing, and putting
together a person’s life history. At a minimum, the miti-
gation specialist should request and receive records that
are reflective of the defendant’s life history (e.g., med-
ical records, mental health records, and school records),Aggravating and Mitigating Circumstances, Evaluation of in Capital Cases——— 7A-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 7