The Failure of Mitigation?

35 Pages Posted: 8 Jun 2014

See all articles by Robert J. Smith

Robert J. Smith

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute)

Sophie Cull

Vital Projects Fund, Inc.

Zoe Robinson

Australian National University, School of Politics and International Relations

Date Written: June 6, 2014

Abstract

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America. Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders. Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer. Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival — and perhaps outpace — those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility.

Suggested Citation

Smith, Robert J. and Cull, Sophie and Robinson, Zoe, The Failure of Mitigation? (June 6, 2014). Hastings Law Journal, Vol. 65, 2014, UNC Legal Studies Research Paper No. 2446950, Available at SSRN: https://ssrn.com/abstract=2446950

Robert J. Smith

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) ( email )

Cambridge, MA
United States

Sophie Cull

Vital Projects Fund, Inc. ( email )

LA
United States

Zoe Robinson (Contact Author)

Australian National University, School of Politics and International Relations ( email )

Canberra, Australian Capital Territory 2601
Australia

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