The Limits of Law in the Evaluation of Mitigating Evidence

42 Pages Posted: 23 Oct 2017 Last revised: 21 Sep 2018

See all articles by Emad H. Atiq

Emad H. Atiq

Cornell University - Law School; Cornell University - Sage School of Philosophy

Erin Miller

University of Southern California Law School

Date Written: October 17, 2017


Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty. SED has played a central role in the Court’s elaboration of the “consideration” requirement. It is often given what we call “restrictive consideration” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime. We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence. When judges restrict the moral principles under which they evaluate the mitigating weight of evidence on the basis of precedent or even judicial custom, they fail to give a reasoned, moral response to the evidence. We articulate a three-factor test for when legalistic thinking of this sort prevents a judge from satisfying the constitutional requirement. Restrictive consideration of SED evidence, in many jurisdictions, is a product of legal convention and thus fails the test.

Second, we contend that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from restrictive consideration of mitigating evidence. The Constitution requires that death sentences must be consistent with community values. Unrestricted consideration of evidence — evaluating its mitigating weight in light of a range of moral principles — ensures that the diverse moral views of the community are brought to bear on the capital question.

Keywords: Mitigation, Capital sentencing, Causal nexus test, Consideration, Severe environmental deprivation evidence, Legal vs. moral reasoning

Suggested Citation

Atiq, Emad H. and Miller, Erin, The Limits of Law in the Evaluation of Mitigating Evidence (October 17, 2017). American Journal of Criminal Law, 45:167-201 (2018) , Available at SSRN:

Emad H. Atiq (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell University - Sage School of Philosophy ( email )

218 Goldwin Smith Hall
Ithaca, NY 14853-3201
United States

Erin Miller

University of Southern California Law School ( email )

699 Exposition Blvd.
Los Angeles, CA 90089
United States
90089 (Fax)

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