Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation

This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases.The article builds on converging lines of research in the social sciences that have constructed a framework which conceptualizes the roots of violent behavior as extending beyond the personality or character structure of those people who perform it, connecting it historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which their violence transpires.The piece explains how to translate these insights into the collection and presentation of mitigation evidence in capital cases. It describes in detail the various factors in a person\u27s social and physical environment that are demonstrably likely to lead to criminal behavior, and how, in the context of an adversary system, these general findings can be persuasively woven into the mitigation case to be made on behalf of an particular client to an audience whose pre-disposition is to be unreceptive if not outright hostile.A capital defense team that is performing effectively in accordance with the ABA\u27s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue will engage in a continuous iterative process between the assembly of a psychologically-oriented social history in which key developmental stages and relevant family and social experiences are analyzed together and the construction of a mitigating counter-narrative that incorporates a capital defendant\u27s social history and immediate life circumstances. If properly conceived and supported this narrative will provide a more satisfying account than the one the prosecution is certain to offer - an account confined to the defendant\u27s crime, which is presented as entirely the product of his free autonomous choice-making and constitutes both the full measure of the defendant\u27s life and the primary justification for ending it