The Failure of Mitigation?

35 Pages Posted: 8 Jun 2014  

Robert J. Smith

University of North Carolina School of Law

Sophie Cull


Zoe Robinson

DePaul University College of Law

Date Written: June 6, 2014


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:

Robert J. Smith

University of North Carolina School of Law ( email )

102 Ridge Road
Chapel Hill, NC NC 27514
United States

Sophie Cull

Independent ( email )

Zoe Robinson (Contact Author)

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

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