Footnotes (37)



Appealing to Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles in Adult Court

Beth Caldwell

Southwestern Law School


64 Me. L. Rev. 391

The Supreme Court’s recent decisions in Roper v. Simmons and Graham v. Florida demonstrate that mitigating information about a young person accused of a crime is important to courts. In both Roper and Graham, the Supreme Court considered the tragic life histories of young defendants in conjunction with adolescent development research. In Roper, the Court held that sentencing juvenile offenders to death violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Similarly, the Graham decision found the punishment of life without the possibility of parole unconstitutional for juveniles convicted of nonhomicide offenses. Mitigating information helped to frame the Court’s understanding of the complicated developmental issues impacting juvenile offenders in both of these landmark cases.

Mitigating evidence may dramatically influence the outcome of a case, and the Court's reasoning in Roper and Graham suggests that mitigating evidence may be required in cases where juvenile offenders face substantial sentences in adult court. I set forth a framework for potential postconviction challenges to juvenile sentences based on the argument that failure to present mitigating evidence about a juvenile client in adult court constitutes ineffective assistance of counsel. This argument incorporates death penalty jurisprudence requiring counsel to present evidence of mitigation and builds on a model for postconviction review of Three Strikes sentences pioneered by Stanford Law School's Michael Romano.

The article explores alternative mechanisms for providing incarcerated juvenile offenders the opportunity to present evidence of rehabilitation in an effort to facilitate the type of “meaningful opportunity for release” that the Graham decision guarantees. It concludes by discussing specific skills and techniques attorneys should develop in order to gather and present mitigating information about juvenile clients. Drawing from therapeutic jurisprudence scholarship, as well as this author’s background in the field of Social Welfare, this discussion presents multidisciplinary techniques that enhance the legal representation of youth.

Number of Pages in PDF File: 33

Keywords: juvenile, appeal, post-conviction, mitigation, therapeutic jurisprudence

Open PDF in Browser Download This Paper

Date posted: July 6, 2012  

Suggested Citation

Caldwell, Beth, Appealing to Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles in Adult Court (2012). 64 Me. L. Rev. 391. Available at SSRN: http://ssrn.com/abstract=2101776

Contact Information

Beth Caldwell (Contact Author)
Southwestern Law School ( email )
3050 Wilshire Blvd.
Los Angeles, CA 90010
United States
Feedback to SSRN

Paper statistics
Abstract Views: 493
Downloads: 72
Download Rank: 223,762
Footnotes:  37

© 2015 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.547 seconds