Definition of Mitigation in the Law
Mitigation in a courtroom has the same meaning, in general terms, as mitigation outside of the courtroom. If the other side can prove that the mitigating factors outweigh the aggravating factors, then a court is more inclined to issue a sentence on the lower end of a range possible under the applicable law.
Mitigation is the reduction of a criminal sentence proposed by a defendant. Mitigating factors differ from the aggravating factors relied upon by the state to issue a harsher punishment under law. In order for the court to impose the recommended sentence from the prosecution, mitigating factors must be outweighed by aggravating factors. A good mitigation strategy can help to avoid a long prison sentence.
A defendant charged with a crime can argue mitigation to help avoid a long prison sentence. The goal of mitigation is to make the case that the mitigating factors surrounding the offense are more significant than the aggravating factors in order to reduce the length of the penalty. Without a solid argument in favor of mitigation , the defendant will be left with whatever sentence has been recommended by the prosecution.
Mitigating factors include personal history or characteristics that the defendant possessed at the time of the crime. For example, the defendant may have suffered from a head or brain injury that affected their judgment at the time of the crime. Other examples of mitigating factors are if the defendant grew up in a household filled with abuse or violence or was under extreme emotional duress at the time of the criminal act. Mental illness is another example of a mitigating circumstance that may reduce the seriousness of the crime and lessen the penalty.
Mitigation’s Role in Criminal Cases
Mitigation is a very important part of almost every juvenile criminal case. Almost every case has some slight mitigating factor that could be used in your defense as leverage to get the prosecutors to drop the case or offer a much more reasonable plea deal. I have even seen cases completely dismissed due to compelling mitigation in some criminal cases.
To illustrate this point, I will provide a short story about one of my criminal cases. About 6 months ago, I met one of my new juvenile clients for the first time. My client was charged with stealing right out of his Uncle’s house and bringing it out into the garage area where he lived. This crime happened in the home of my client’s Uncle, who would watch out for him since my client’s parents were not the best influences on him. When the police discovered my client with the stolen property, he provided the police with a completely false story about how he found these things laying around, and eventually the police returned the property to the person who owned it and arrested my client.
In Juvenile Court, I was able to convince the prosecutor that even though there was no question that my client committed this crime, there had to be some explanation and mitigation for why it happened. The prosecutor agreed that my client should be allowed to admit to the crime under a lesser offense even though the prosecutor insisted on a strict agreement about what would happen if the client committed a new offense or failed to do what was ordered by the Court. Even though my client lied to the police and had what is called a ‘prior history’ of misbehaving while not far from home and even had a probation violation, the prosecutor agreed to make this deal with my client: a reduced offense, and it allowed my client to continue living with his Uncle while going to school and staying out of trouble.
With a lot of mitigation in almost all criminal cases, including juvenile criminal cases, you will see that the Judge orders something called a Pre-sentence report "PSI", which is a report written by a probation officer who meets with the client several times, along with attorneys from the prosecutor’s office and the defense attorney, and meets with other people who know about the client’s education and living situation. In the juvenile criminal cases this also includes representatives from the school and other interested parties. Then that officer writes a report which contains all of the facts of the case from all people involved, and then writes a recommendation about how to proceed. Generally, the Judge has a hard time saying no to the recommendations made by the officers who write these reports.
Some common mitigation factors include things such as prior mental health issues, prior drug use, lack of a prior criminal record and remorsefulness about the crime for which the person has been charged. Even in the most extreme cases, if you have a good mitigation motion written and present it to the prosecutor, they may only be willing to offer a plea deal with a lesser offense or have a fixed recommendation for a certain number of hours of community service rather than the incarceration that is otherwise recommended for the crime.
Mitigation in Civil Cases
How exactly does mitigation work with damages in a civil case? Is this something important to your civil injury lawsuit? It depends on several things, but first let’s look at what mitigation is. Mitigation in legal terms is simply reducing the force or effect of something. Typically with personal injury law, it refers to minimizing your losses after you have been hurt. So, when should you mitigate your damages? If you seek relief through the courts as a result of an injury, then you have a responsibility to prevent further losses. Therefore, if you are in a court situation, you have to take action to address problems that may be arising from your circumstances. If you don’t make an attempt to fix your problems, the courts may find that you are not trying to mitigate your damages and this can impact your case and any potential compensation. With the insurance company, you may be found to be in a bad faith situation if you fail to mitigate your damages. This can make it difficult for you to receive compensatory damages. Not mitigating your damages, or failing to do what a ‘reasonable person’ would do in a similar situation can mean that courts or insurance companies may not find your case favorable. If you could have mitigated your damages reasonably and did not do so, this can impact you negatively. One way where this comes into play is with medical treatment. You are expected to seek medical treatment for an injury or loss, so you can address the problems resulting from the injury or to minimize those losses as much as possible. If you sustained a back injury and did not go with the doctor, you cannot ask for compensation for treatment you did not seek, since this would be money you lost but could have avoided if you had just gone to the doctor. If it is reasonable for you and is done through medical expenses, it is a valid case for compensation. In a situation where you can perform a duty or task that will give you income and you do not prefer to do this because you just don’t want to be bothered, it may not seem like a reasonable act. Unless the activity you want to avoid is, say, guarding a highly charged explosives compound or hosting parties at your house – then there are few situations in which you could not reasonably be asked to do something or seek treatment. Simply because it is inconvenient as a person to go through treatment, perform a duty or responsibility, or otherwise do what is asked of you doesn’t make it unreasonable. Mitigation is what helps courts or the insurance company decide who or what is at fault and how much should be compensated as a result. Sometimes, you may be deemed at fault for more money, because you failed to show mitigated damages.
Aggravating Factor vs. Mitigating Factor
Mitigating circumstances and aggravating factors are terms used to explain to judges and juries the importance of various facts in a criminal case. They determine how much weight a judge or jury gives to a particular fact. Mitigating circumstances are those that lessen the severity of a crime. They can be physical, mental or emotional, or even situational. For example, if a person commits a violent crime while under extreme duress, this would be a mitigating circumstance. Another example could be a person who sees a family member suffer a heart attack all of a sudden at a family dinner, causing them to go into a state of panic that results in committing a sudden violent crime. Mitigation facts help jurisdictions provide a degree of justice while at the same time trying to rehabilitate people instead of punish them as severely as possible. Judges and juries can use mitigation facts to put people in less severe treatment plans instead of sentencing someone for a long period of time to a penitentiary. Aggravating factor facts include things such as the person engaged in cruelty, there was an intention to kill or inflict serious bodily harm on someone, the person intentionally killed for profit, the crime involved a substantial planning of the act, there was prior adverse contact with the courts and other known factors can be used. Other aggravating factor facts that could be cited would be a history of violence, prior convictions and expert testimony that indicates there is a great possibility of violence in the future. These aggravating factors are the opposite of mitigation facts. Because they suggest the criminal is dangerous, it is more likely that a judge or jury will be swayed not go with a reduced sentence or recommend against parole because of the aggravating factors.
Examples of Effective Mitigation
Examples of Successful Mitigation Include the Following:
In Saadi v. State of Louisiana, 318 So.2d 23, 25 (La. 1975), the Louisiana Supreme Court reversed a death sentence and ordered a new sentencing hearing where the prosecution had relied solely on the defendant’s involvement in the crime in the opening and rebuttal arguments. The court determined that sentencing juries are prone to emotional sympathy for innocent victims and to "condemn the wicked" thus leaving an overhung jury seeking more information about the defendant for an adequate discharge of its duty. The court held that the trial court committed reversible error in failing to allow the defense to produce expert testimony for the sole purpose of aiding the guilt-innocence trial.
In Powell v. State, 11 So.3d 800 (Miss. Ct. App. 2008), the Mississippi Court of Appeals reversed and remanded for a new sentencing hearing where the trial judge refused a defense request to allow the defendant to call his mother to testify that as a child, he was both physically and mentally abused. As a life without parole case, the repeated references to death during the sentencing phase were prejudicial. Psycho-social history evidence must be allowed in aggravated robbery cases in the mitigation phase of the trial.
In Mills v. State, 786 So.2d 396, 406 (Miss. 2001), a capital murder case, cert. denied, 535 U.S . 972 (2002), the Mississippi Supreme Court reversed and remanded for a new sentencing hearing where the trial court cut off defense counsel in mid-sentence twice when counsel attempted to elicit evidence in mitigation. The court then erroneously failed to instruct the jury that they may consider defendant’s intoxication in their deliberations.
In Quintanilla v. State, 193 S.W.3d 332 (Tex. Crim. App. 2006), the Court of Criminal Appeals of Texas reversed and remanded for a new punishment hearing where the trial court was not permitted to limit defense counsel’s mitigation rebuttal as her cross-examination of the state’s mental health experts case was initially limited by the trial judge. On appeal, the state argued that even if there was error, it was harmless and not subject to reversal. But the court holds that the unequal treatment of the sentencing phase expert witnesses denied the defense the right to present mitigation.
In Hastings v. State, 305 So.3d 683 (LA 2020), the Louisiana Supreme Court reversed and remanded for re-sentencing where the trial court repeatedly questioned Dr. Hatch over the use of the DSM-V and repeatedly cut Timothy Hastings off during his testimony. Given the complexity of the insanity defense, the State is correct that the DSM-V is essential to a proper understanding of the symptoms Mr. Hastings exhibited. The trial judge had no basis to question the DSM-V over fears that a jury may consider it an authority.
How Attorneys Develop Mitigation
Attorneys will review the circumstances of the crime, the defendant’s history, and any mitigating factors to build a case for a reduced sentence. An understanding of forensic evidence and psychological evidence is often important in this phase of preparing for trial as well.
Evidence and Expert Testimony
While mitigation does not take the same approach as evidentiary defense, mitigation strategies still rely on the availability of forensic evidence and expert testimony to support arguments that the lawyer knows are not relevant to the case. In addition to general forensic evidence which might be relevant to criminal defense, such as ballistics and fingerprints, mitigation specialists like defenders might look for additional evidence that could be used to build a picture of the client that explains why they committed the crime while positing that they should not suffer a harsh sentence for the crime. Expert testimony from trained forensic evidence specialists and mental health professionals can help support the work of the mitigation specialist in building a strong mitigation case.
Client Background Information and Mitigation
Mitigation relies heavily on the background of a defendant. Data about the client’s background is usually disclosed to the defense team through pretrial discovery. Interviewing the client is essential to getting accurate, relevant information about their life history and motivations. Mitigation strategies will look at family history, including: While some of this information might be in the client’s criminal history record, much of it still needs to be collected by the mitigation team to build details into the life story of the client. Mitigation strategies look at the assets and deficits of the client, using such details as familial abuse, childhood neglect, depression and more to work to build a picture of the client that tempers the circumstances of the crime.
Effects of Mitigation on Verdicts and Sentencing
Mitigation plays a crucial role in the outcome of criminal cases. A defense attorney’s strategy is to stress the points that indicate that the client should be given a lesser sentence. Usually, mitigation efforts involve stressing points that extenuate the actions of the defendant or mitigate the possible punishment. Both judges and juries react to the power of mitigation. Research has shown that when mitigation evidence is presented to a judge, the judge often reduces the sentence being given. A study by William Fleissner revealed that judges were more likely to reduce a maximum sentence by 15 percent when there was at least one piece of mitigation evidence given. The motivation behind this was giving the judges information that humanized the defendant and made it difficult for them to issue a maximum sentence at law. Defense lawyers use mitigation evidence to reduce the sentences of their clients. In many cases , mitigation evidence is used to reduce a prison sentence to probation. The most common evidence used in mitigation is the defendant’s background and lack of criminal history. Other mitigation evidence includes evidence of the defendant’s mental state and how it may have impacted their behavior. Other evidence that is used to mitigate sentences is evidence of addiction that may have motivated the behavior.
Evidence of addiction and mental health issues can help to keep people from going to prison. It can help to prevent a person from pleading guilty. For instance, in California, when addiction is the main cause of a person committing crime, judges can give those people diversion programs where they get treatment rather than jail time. Judges are more inclined to reduce a sentence if they believe that rehabilitation is more likely.