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

33 Pages Posted: 6 Jul 2012

Date Written: 2012


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.

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

Suggested Citation

Caldwell, Beth C., Appealing to Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles in Adult Court (2012). 64 Me. L. Rev. 391, Available at SSRN:

Beth C. Caldwell (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

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