Death Penalty Mitigation: A Handbook for Mitigation Specialists, Investigators, Social Scientists, and Lawyers [1 ed.] 0195329465, 9780195329469

Table of contents :
Contents
Foreword • Craig Haney
Acknowledgements
Introduction
Part One: Foundation Knowledge for Mitigation Practice
1. Mitigation Practice in Death Penalty Cases
2. History of Mitigation of Punishment
3. Mitigation Professionals: Roles and Responsibilities
4. Assessing Culpability: The Role of Background and Character
Part Two: Concepts and Frameworks for Developing Mitigation Evidence
5. Theoretical Frameworks and Concepts for Guiding Social History Investigations
6. Assessing Practical Rationality and Volitional Concerns
7. Assesing Character, Criminal Propensities, and Sociocultural Deprivation
8. Social Frameworks and Mitigation of Criminal Motivations
Conclusions and Research Needs
Appendix: Court Descriptions of the Case of Robert Alton Harris
Glossary
References
Index

Citation preview

death penalty mitigation a handbook for mitigation specialists, investigators, social scientists, and lawyers

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Death Penalty Mitigation A H A N D BO OK F OR MIT IGAT IO N S PE C IA LISTS, I N V E STIGATO RS, S O C IAL S C IE NT IS TS , AN D LAW YERS

José B. Ashford with

Melissa Kupferberg

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3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016

© Oxford University Press 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Ashford, José B. Death penalty mitigation : a handbook for mitigation specialists, investigators, social scientists, and lawyers / José B. Ashford, Melissa Kupferberg. pages cm Includes bibliographical references and index. ISBN 978–0–19–532946–9 (hardcover : alk. paper) 1. Capital punishment—United States. 2. Sentences (Criminal procedure)—United States. 3. Crime—Sociological aspects. 4. Criminal behavior—Social aspects—United States 5. Criminal psychology—United States. 6. Forensic psychology—United States. 7. Social work with criminals—United States. I. Kupferberg, Melissa. II. Title. HV8699.U5A84 2013 364.66—dc23 2013009043

9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper

Contents Foreword by Craig Haney vii Acknowledgements xi Introduction xv part one | foundation knowledge for mitigation practice 1 1. Mitigation practice in death penalty cases 3 2. History of mitigation of punishment 18 3. Mitigation professionals: Roles and responsibilities 33 4. Assessing culpability: The role of background and character 51 part two | concepts and frameworks for developing mitigation evidence 73 5. Theoretical frameworks and concepts for guiding social history investigations 75 6. Assessing practical rationality and volitional concerns 104 7. Assessing character, criminal propensities, and sociocultural deprivation 135 8. Social frameworks and mitigation of criminal motivations 160 Conclusions and research needs 183 appendix 191 glossary 197 references 201 index 215

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Foreword

over the many years that I have studied capital punishment and testified as an expert witness in death penalty trials, I have been guided by one simple but central assumption—namely that, under normal circumstances, normal people are not capable of rationally contemplating and calmly deciding to take the life of another person. In a sense, of course, this is exactly what a democratically administered system of death sentencing requires them to do. Normal, average people—members of the public who express support for capital punishment, voters who elect pro– death penalty politicians and enact referenda to retain and even expand capital punishment, and capital jurors who vote in favor of imposing a death sentence in a given case—must somehow be brought to the point where they are willing and able to violate otherwise deep-seated societal, moral, and religious prohibitions against taking a human life. One of the most effective ways in which this is accomplished is by portraying and perceiving those on whom the death penalty would be imposed as something other than actual persons. Obviously, the prohibition against taking the life of another person is not really being violated if the perpetrators of capital crime are not fully human. This psychologically useful distortion of the truth is aided and abetted by a pervasive process of demonization, one that seeks to rob capital defendants of their common humanity and sever their connections to the persons who ultimately must judge them. Indeed, the life stories of persons accused vii

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or convicted of capital crime are rarely told in complete or authentic ways in our society. To the contrary, a kind of “media criminology” dominates the all-pervasive news stories and fictional accounts of crime in which citizens are immersed. It typically selects the most sensationalistic, deviant, and unsympathetic qualities of the perpetrators of capital crime and arranges them into stereotypical portraits of criminal depravity. Media criminology relies on and supports a prevailing “crime master narrative” in which the causes of criminal behavior are thought to reside entirely within those who engage in it. Crime is depicted as the product of the totally free and morally blameworthy choices made by essentially “bad” persons who act unencumbered by their past history or present circumstances. Through the lens of this master crime narrative, violent criminals are typically depicted as utterly cold and crafty in the pursuit of their selfish and destructive ends, or as so inexplicably deranged that their violence seems all the more threatening because it is so unpredictable and uncontrollable. To underscore the fundamental “otherness” of capital defendants, in particular, as the perpetrators of the most extreme forms of violence in our society, the media typically encapsulates them in frightening portraits that reduce them to little more than pathological caricatures. Thus, citizens are encouraged to regard persons accused or convicted of capital crime as “stone killers” or “psychokillers,” as “monsters,” or as just plain “evil.” In addition to the psychological role it plays in facilitating the use of the death penalty, this process of demonization serves another function. The death penalty itself derives much of its symbolic value as the expression of society’s ultimate condemnation by drawing the starkest possible contrasts between civil society and those who would threaten its ordered existence. The more outwardly evil the targets of capital punishment can be portrayed as, the more socially, politically, and legally necessary and legitimate this extreme form of state-sanctioned violence seems, and the greater the national cathartic value it retains. Demonization “morally disengages” individual decision-makers and the body politic itself from the full implications of state-sanctioned killing. Whether ultimately “functional” or even necessary to the death penalty’s continued existence, we argue here that these frightening and incomplete depictions of the nature of capital crime and the lives of capital defendants result in the broad mis-education of many members of the public, who are left to premise their views on the existence and application of capital punishment—including in their important decision-making roles as voters and even as capital jurors—on myth and misinformation. Elsewhere I have argued that our system of death sentencing depends on this collective bad faith, so that, as a rule, those who support capital punishment the most actually know the least about how it actually operates.

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Albert Camus lamented the way that the true nature of the death penalty was kept smothered under “padded words” to keep the larger society from coming to terms with what it “really is.” Nowhere is the padding thicker than with respect to the lives of capital defendants and the nature of the societal and familial forces that helped to shape their life course and explain the actions in which they ultimately engaged. Ironically, but perhaps appropriately, the only place in our society where accurate, in-depth, and comprehensive analyses of the life histories of capital defendants are being regularly presented is inside a number of courtrooms across the country where death penalty trials are being competently conducted. It is the culmination of the Herculean efforts that have been undertaken for decades now by death penalty lawyers and persons whom José Ashford and Melissa Kupferberg call “mitigation professionals.” Nearly forty years ago, when the United States Supreme Court ruled that capital punishment could once again be implemented in states that chose to do so, the Court authorized attorneys to present evidence from a very broad scope of potenital “mitigation”—facts about the capital crime itself and, more often, about the “background and character” of the defendant— that might lead jurors to impose life rather than death sentences. But the Court provided very little guidance about exactly what kind of facts could and should be presented. Many attorneys had neither the training nor the inclination, let alone the resources, with which to uncover and analyze this mitigation and assemble it into effective mitigating narratives who jurors could appreciate and take into account. Much has changed since the early years in which dedicated death penalty lawyers, investigators, and mental health professionals collectively forged a new set of intellectual and practical tools, practices, and frameworks for uncovering, analyzing, and presenting honest and compelling narratives about the traumas and tragedies that characterized their clients’ lives. It has now become a very specialized and sophisticated area of legal practice, one where legal teams apply the most advanced scientific knowledge from diverse fields—including developmental, social, and clinical psychology, criminology, sociology, neuroscience, and psychiatry—and uncovering important, mitigating truths about individual capital clients as well as about the larger forces in our society that help to shape violent criminal behavior. This book is one of the first written explicitly about the nature and mechanics of trailblazing capital mitigation investigation and analysis. It is essential reading both for people who do, or are thinking about doing, this kind of work. Dr. Ashford and Ms. Kupferberg remarkably manage to situate mitigation work in a larger intellectual context by grounding it in long-standing legal principles of

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mitigation and provide mitigation professionals with many of the core conceptual tools on which modern mitigation practice relies. The authors review the basics of the law of mitigation, the composition of an effective capital defense team, the nature of the respective roles and responsibilities of each of its members, and the crucial interplay between mitigating evidence and assessments of culpability in a capital trial. This is much more than a textbook or practical “how to” guide to mitigation (although it is certainly that). The authors provide a wide variety of “social lenses” through which mitigation professionals can conceptualize their work and develop strategies for uncovering evidence and testimony that is likely to be effective. They introduce a number of potentially useful and applicable academic perspectives on the nature of mitigation, providing insights into why some approaches might be more successful than others. And the training value of the material is enhanced by a number of case-specific references. Thus, the book can serve as an overall summary and supplement to principles that have been embodied in the essential American Bar Association Supplementary Guidelines on the Mitigation Function of Defense Teams in Capital Cases and the many important things that have been written about them. There have been a great many law review articles that address these issues, many of which are referenced by Ashford and Kupferberg. But there have been few booklength treatments of this rich subject. Now that these fine authors have gotten scholars and practitioners thinking at length and in depth about the nature of this work, I hope there will be many more. We are deeply indebted to them for getting this intellectual analysis started on such a firm footing. —Craig Haney

Acknowledgements

the idea for this book grew out of discussions that I had with a well-known mitigation specialist, Melissa Kupferberg. Melissa was one of my former graduate students whom I introduced to the field of capital mitigation. She was actively involved in the training of mitigation specialists and investigators at meetings for the National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS) of the National Legal Aid and Defenders Association and many other defense-oriented organizations. She was tragically taken from all of us at the start of this project. Melissa was a very bright and highly inquisitive young woman who was committed to the advancement of mitigation practice. She initially wanted to work as a court-affiliated practitioner in forensic mental health, but mitigation practice captured her mind and heart after she had a field placement at the Office of the Legal Defender in Phoenix, Arizona. She was hired as a mitigation specialist at this office after her placement, and went on to work as a mitigation specialist with the Public Defender’s office in Phoenix and as an investigator with the Federal Public Defender in Tampa, Florida. Most mitigation professionals and investigators who had an opportunity to meet Melissa commented on her wit and her breadth of knowledge. She had both professional and scholarly interest in the subject of mitigation and read widely on a variety of topics with relevance to her work. Her engaging personality enabled xi

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her to develop networks with a diverse array of professionals in the field of mitigation. Melissa was not shy about sharing her thoughts about the role of a mitigation specialist on a capital defense team. In sharing her thoughts about this and other topics, she never lost her remarkable sense of humor and the respect of her colleagues. Melissa and I decided to write a book on mitigation with a primary focus on the sociocultural and social-psychological contributions to mitigation because we noticed that many mitigation professionals were failing to exploit the recent advances in the social sciences germane to mitigation practice. We had additional concerns about some of the trends in the broader culture involving the devaluation of the contributions of experience and background in judging issues of blame and culpability. For these reasons, we set out to write a book that would rekindle interest in the defense and the social science communities in the potential contributions of the social and cultural environment in addressing issues of capacity, choice, and character in assessing the moral culpability of defendants in capital cases. We assume that a “socially rotten background” contributes as much to the development of impaired mental mechanisms as do defects in a person’s neurobiological makeup. This viewpoint is consistent with what is known as an interactional perspective in the developmental sciences. This conceptual approach differs from the mind-and-body forms of dualism that abstract the contributions of sociocultural experiences from the functioning of the brain in making judgments about issues of mind, character, and culpability. It is also consistent with my own background as a sociological social psychologist with a specialization in life-course criminology and sociology, and my professional training and experience as a clinical social worker with a specialization in forensic mental health. Melissa was the spark that lit the fuse for my decision to write this book on a topic that had its initial seeds planted by Chuck McCaghy. I am very grateful to Chuck McCaghy for introducing me to the sociology of accounts, to C. Wright Mill’s conception of vocabularies of motive, and to the works of David Matza. He exposed me to these important works at a sensitive period in my career when my interests in sentencing and the relationship between identity and crime were forming. I am also thankful to him for his mentorship in the area of societal reactions to various kinds of deviance, including homicide. I would also like to thank Peggy Giordano for challenging me to think about the integration of concepts from different theories of criminology. Her urgings in this direction have continued to resonate, and they had an influence on how I approached the intersections of philosophy, law, and social science in this book.

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I am also grateful for having had the opportunity to work with the staff at the Court Diagnostic and Treatment Center in Toledo, Ohio, which was where I began my forensic career and where I honed my skills as a social history expert in forensic mental health matters, including mitigation of punishment. However, it was within this pre-Lockett context that I had my first exposure to circumstances in which socially meaningful forms of mitigation were not given an opportunity to have an effect on penalty decisions. Indeed, my initial interest in trying to overcome barriers to the introduction of sociocultural arguments in the mitigation process had their initial roots in these pre-Lockett cases in Ohio. I am also very thankful to the former Arizona Capital Representation project at the Sandra Day O’Connor College of Law. Attorneys at this project gave me an opportunity to work on a number of habeas cases, including the Donald Eugene Harding case, which rekindled my interest in mitigation matters. In addition, I want to extend my thanks to all of the lawyers who hired me to serve as a social history and socio-cultural expert in a number of challenging capital cases. Each of these cases helped me broaden my views about the dilemmas confronting mitigation specialists and social science experts in death penalty cases. These cases also challenged me to identify concepts and frameworks for developing socially relevant forms of mitigation for persons from “nightmarish” backgrounds and for persons subjected to the pushes and pulls of becoming prison- and street-gang members. I also would like to thank the lawyers, mental health professionals, mitigation specialists, philosophers, and social scientists who contributed to this work by their own writings on related subjects or who inspired my thoughts in many other ways. They include: Peter Arenella, Roy Baumeister, Augusto Blasi, Lisa Bolinger, Peter Burke, Brad Bushman, Phyllis Crocker, Mary Durand, Barbara A. Hudson, Glen Elder, Jr., Reed Fontaine, Harry Frankfurt, Karen Froming, John Haidt, Craig Haney, John Hannah, Henry H. Hartman, Scharlette Holdman, Paul Litton, John Lofland, Standford Lyman, Alasdair MacIntyre, David Matza, Michelle McCloskey, Jill Miller, Stephen Morse, Ken Murray, Allen Norrie, Bruce D. Sales, Ferdinand Schoeman, Benjamin Sendor, Nora Shaw, Luigi Solivetti, Jan Stets, Victor Tadros, Peter Tetlock, Gary Watson, Larry Whirl, and Susan Wolf. Finally, I truly appreciated the encouragement that I received to complete this book from Melissa’s family and friends, and from Ronnie Reid. I also want to extend special thanks to my editors, Dana Bliss, Nicholas Liu, and Maura Roessner, for their support following Melissa’s death, as well as the other assistance provided by members of the staff at Oxford University Press, Brianna Marron and Michelle Shu. I also want to extend special thanks to the reviewers of our manuscript. The feedback that they provided helped us focus on key developments in the field of mitigation

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practice. They were James Clark, Director of the School of Social Work at University of Cincinnati; Ken Murray, Assistant Federal Public Defender, Phoenix Office of the Federal Public Defender Capital Habeas Unit, David Patterson, Director of the Clinical Doctorate Program at University of Tennessee Knoxville, and Jan Vogelsang, clinical social worker. —José B. Ashford

Introduction

while reading this book, it is important to recognize that there are more than 3,000 individuals on death row in the United States. The death penalty is the severest punishment that can be administered to any offender. It is supposed to be reserved for the “worst of the worst.” In deciding who is among the “worst of worst,” the United States Supreme Court ruled that the jury should consider not only the circumstances of the crime, but also any of the “‘diverse frailties of humankind‘ that may apply to a defendant” (Woodson v. North Carolina, 1976, p. 304). The penalty of death is “unique in both its severity and finality” (Gardner v. Florida, 1977, p. 349). As a result, the Constitution demands “a greater degree of accuracy . . . than would be true in a noncapital case” (Gilmore v. Taylor, 1993, p. 334). The United States Supreme Court has acknowledged this important qualitative difference between capital and ordinary sentencing processes. The court has directed the jury to consider “any aspect of the client’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death” (Lockett v. Ohio, 1978, pp. 2964–2965). This information about the offense and the offender is essential for making a “reasoned moral response” in assessing the degree of culpability of the defendant and in deciding between the death penalty and the sentence of life in prison without parole (California v. Brown, 1987). Social science experts, mental health professionals, and other kinds of xv

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experts assist the criminal defense team in presenting this type of information to jurors or other appropriate sentencing authorities. This book examines the foundation of knowledge that mitigation professionals (investigators, lawyers, mental health professionals, mitigation specialists, and social scientists) need in order to identify and frame mitigation evidence. Most lawyers are trained to deal with issues of legal guilt in the criminal process. They have taken courses on criminal law and criminal procedure, but have had minimal formal coursework in schools of law about sentencing matters. The upshot is most criminal lawyers enter practice without having significant exposure to either sentencing law or sentencing philosophy. They have obtained most of their knowledge of mitigation of punishment, including mitigation in death-penalty cases, from training acquired while in criminal practice. Forensic training programs in psychiatry, psychology, social work, and mental health law also devote minimal attention to sentencing matters. Most training programs in forensic mental health are designed to help mental health professionals appreciate the contextual differences between law and the sciences—the behavioral, medical, and social sciences. They also help professionals understand the ethical and legal constraints surrounding the use of diagnoses and risk assessments in legal and correctional matters, including how to perform assessments of potential dangerousness and treatability. However, like lawyers, most mental health professionals have not been exposed in their education and training to legal theory and philosophy on issues of mitigation of punishment. Punishment is a complex subject involving the intersection of knowledge from philosophy, law, and social science. Some jurists, legal philosophers, and criminologists have developed explicit expertise on crime and punishment matters, but most mitigation professionals (lawyers, expert witnesses, mitigation specialists, and criminal investigators) have obtained their knowledge of this subject from trainings sponsored by defense-oriented organizations. These trainings sensitize lawyers and non-lawyers to developments in the law of mitigation, but offer minimal guidance about many of the translational issues encountered by various professionals in developing relevant mitigation evidence. Each of these professions has a different lens for approaching many of the topics examined in this book. For this reason, we hoped that this book might help various professionals involved in mitigation practice to appreciate important differences in how the law, philosophy, and social science confront issues germane to the practice of mitigation in death penalty cases. In death cases, “[t]he defense team must conduct an ongoing, exhaustive and independent investigation of every aspect of the client’s character, history, record and any circumstances of the offense, or other factors, which may provide a basis for a sentence less than death” (ABA Supplementary Guidelines, 2008, p. 689). This

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handbook examines theoretical frameworks and concepts from the social sciences with implications for guiding the identification, evaluation, and presentation of mitigation evidence. Lawyers, social scientists, and social workers (as well as other mental health professionals) have to master several distinct bodies of knowledge in order to practice effectively in the field of mitigation. This book offers mitigation professionals an introduction to these foundational knowledge concerns with a primary focus on developing themes of sociocultural and social psychological forms of mitigation.

The Role of Social Science in Mitigation Practice

Jurors serve an important social function in death penalty cases. They maintain an important link for society between contemporary community values and its institutions of punishment (Witherspoon v. Illinois, 1968). In capital cases, jurors are asked in the guilt phase of the criminal process to determine whether the defendant caused the harm, whether the defendant had the legal competence to produce the harm, whether the defendant had knowledge of the likely consequences of his or her actions, and whether the defendant intended the crime that is defined by law. After jurors are convinced that the defendant is legally responsible for a capital crime of murder, then they are asked to make a reasoned moral judgment about the appropriateness of a sentence of death (California v. Brown, 1987; Penry v. Lynaugh, 1989). In current capital jurisprudence, a death sentence should not be automatic when an individual is convicted of first degree murder. Murder cases require individualized judgments that take into account the unique moral qualities of the offender and the circumstances of the offense. It is no longer considered constitutional for jurors to assume that the defendant’s moral culpability is equivalent to the category of the crime for which he or she is convicted (Woodson v. North Carolina, 1976). The abstract subjectivism associated with the “reasonable person” standard that can play a key role in disputes about the defendant’s criminal responsibility is no longer the touchstone in disputes about the defendant’s moral culpability in the penalty phase of a capital case. The agent’s explicit subjective mental states are relevant for evaluating the defendant’s level of moral culpability in this phase of the criminal process. Indeed, mental-state issues matter in assessments of an offender’s legal and moral culpability. However, most mitigation professionals have had more experience in dealing with mental-state issues about questions of legal or criminal responsibility than they have had in addressing questions and disputes about issues of moral culpability and blame. Jurors are asked to take into account the seriousness of the offense and the offender’s degree of culpability in selecting an

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appropriate punishment in the penalty phase of a capital case. However, the role of mental health experts has not been without controversy when they are asked to offer professional opinions about the culpability or blameworthiness of an offender (Slobogin, 2007). Most of the criticisms of this type of testimony have centered on the lack of correspondence between diagnostic concepts and legal concepts of culpability. Critics contend that this lack of connection between the concepts can open the door for practitioners to engage in “storytelling” based on evidence that has minimal scientific creditability (Slobogin, 2007). In order to evaluate many of the claims against the use of expert testimony in assessments of culpability, Slobogin (2007) contends that professionals need to look more closely at how the law defines culpability. We concur with Slobogin (2007) that the law’s treatment of issues of culpability ought to play a pivotal role in how practitioners participate in legal proceedings involving issues of culpability and blame. However, we quickly encountered in writing this book many of the problems facing mental health professionals and social scientists in trying to respond to the multiple definitions of culpability in law, social science, and legal philosophy. For this reason, we chose a conceptual model of culpability from the social sciences to help organize the ways in which social scientists can connect their concepts with concepts of culpability as defined by law. We also adopted specific concepts from legal theory and philosophy on issues of criminal culpability that we believe can help mitigation professionals in disputing unfair attributions of conduct, unfair attributions of moral responsibility, and unfair attributions of character.

Issues of Moral Culpability and Blame in Capital Sentencing

Social judgments of blame tend to be “dominated by normative decision-stage models that prescribe how blame judgments should be made by rational perceivers” (Alicke, 2000, p. 557). For instance, Shaver’s (1985) model assumes that attributions of blame can be divided into three stages: (1) attributions of causality; (2) attributions of responsibility, and (3) attributions of blame. Shaver wrote: Whenever there is a consistent failure to recognize conceptual distinction, it is important to wonder whether the differentiation suggested is really a distinction without a difference. In the case of the conceptual confusion between causality and responsibility, the answer is clear: It is a serious error to use these terms synonymously. What about the morally responsible–blameworthy pair? Here, too, there are good reasons to separate the two terms, reasons that have to do with what Austin (1961) would have called justifications, and with what he would have called excuses. (Shaver, 1985, p. 163)

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In our view, many practitioners use the terms criminal responsibility and moral culpability as if they were synonymous legal terms, which can lead to ineffectual forms of mitigation practice. Indeed, most mitigation professionals have a stronger stock of knowledge and concepts for developing themes about diminished capacities as they relate to questions about the adjudication of guilt in the criminal process than about diminished forms of moral culpability in criminal sentencing. Diminished capacities refers to specific impairments and deficits in abilities with implications for making attributions of both criminal responsibility and moral responsibility. However, most handbooks and other resources on capital sentencing have tended to focus on developing themes involving mental conditions and emotional problems with implications for determining imperfect forms of criminal or individual responsibility. Truly, most lawyers and mental health professions have more knowledge and training about addressing the legally relevant concepts of knowledge, foreseeability, choice, and control, (which are agreed-upon legal criteria for making judgments about a defendant’s criminal responsibility) but less knowledge and training about addressing issues of moral culpability and blame. Legal philosophers have devoted significant attention to trying to clarify and define the structure of criminal culpability (Duff, 1993; Gardner, 1996; Moore, 1997; Robinson, 1997). As Alan Norrie wrote: In considering the criminal law, there is no more fundamental question than what constitutes its basic structure, and there is also no question that poses more difficulty. In the dominant view, the law is divided into general and special parts, and the former, though there is disagreement about its precise character, into questions of mens rea, actus reus, justification and excuse . . . the first two, which constitute the “definition of the offence,” and the second two, which constitute “the defenses”—more simply, “offense” and “defense” in the criminal law. I have argued that this is a necessary distinction, but also a false one. Criminal justice thinking needs, but cannot sustain, a distinction between offence and defense. . . . I suggested that the law seeks to establish a “content neutral” conception of criminal fault, but is unable to do so. The division is made between categories of individual responsibility which are abstract and universal—the Kantian idea of “morality of form”—and the substantive moral categories which are part of the criminal law, but are separated off from the concepts of fault. (Norrie, 2000, pp. 142–143) In this quotation, Norrie illustrates the serious tensions within our system of criminal justice in trying to balance “content-neutral” conceptions of criminal

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fault with its “special moral parts.” Obviously, these tensions are magnified in death cases. The “special moral part” of the structure of criminal law takes center stage in death penalty deliberations. Yet many lawyers and other mitigation professionals are not comfortable with addressing the moral dimensions of blame in the sentencing phase of the criminal process. In my view, this lack of comfort is understandable given the long-standing commitments in Anglo-American criminal law to legal formalism and analytical approaches to legal philosophy. Current thinking about criminal justice is still dominated by the Kantian “idea of the abstract, individual subject, whose fixed identity is the basis for justification and rationalization of criminal justice ideas” (Norrie, 2000, p. 117). Within this Kantian approach, blame is completely individualized in examining the question of criminal liability. As a consequence, the theory of punishment underlying this approach is based on a “choosing being whose actions are morally untrammeled by the influence of character or society” (Norrie, 2000, p. 94). In effect, this theory of punishment assumes that the actions of the defendant can be judged in isolation from the substantive moral context of the defendant’s action (Norrie, 2000). Obviously, this approach to judging the morality of the defendant’s actions differs from the charge given to jurors in the penalty phase of a capital cases. In a capital case, jurors are expected to take into account issues of background and character in selecting an appropriate punishment. It is also the phase of the criminal justice process in which jurors are allowed to weigh social justice and other fairness considerations in selecting a morally appropriate punishment. In writing this book, our goal was to provide mitigation professionals not only with an understanding of the context of mitigation in criminal justice thinking, but also with ways of contextualizing issues of blame and culpability. Sentencing authorities in capital jurisprudence are expected to consider the background, character, record, and condition of the offender. Issues of background and character are important because they help the defendant in accounting for their criminal actions—the special moral part of the criminal process. The accounts proffered by the defense allow jurors to weight social contributions to behavior that involve issues of fairness, moral luck, and opportunity that have important implications for assessing an individual’s moral culpability. Though many of these contextual issues are not relevant for evaluating the individual’s criminal responsibility, case law has documented the important role that a person’s background and character ought to play in evaluating the appropriateness of a death sentence. Justice O’Connor wrote in Penry v. Lynaugh (1989, p. 319). If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, “evidence about the defendant’s background

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and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” (California v. Brown, 479 U. S. 538, 545 (1987); O’Connor, J., concurring). This important nexus between levels of moral culpability and the appropriateness of a death sentence is a theme that is consistently documented in death penalty jurisprudence (Atkins v. Virginia; Burker v. Kemp; Rover v. Simmons; Wiggins v. Smith; Woodson v. North Carolina). However, many mitigation professionals have had less experience with, and exposure to, developments in the social sciences for introducing themes of mitigation involving issues of background and character in assessing the moral culpability of defendants. Nonetheless, the longer any person practices in the field of mitigation, the more it becomes patently obvious that the law and legal policy governing criminal sentencing lack a coherent approach to dealing with issues of background and character in assessing the moral culpability of a defendant. The same background factors that can be used to enhance the defendant’s blame can also be used to mitigate the defendant’s moral culpability (Lee, 2009). Inasmuch as some legal theories assume that offenders should be punished only for what they do, rather than for who they are, current case law allows for taking into account both the nature and quality of the offender’s conduct (offense seriousness), as well as the offender’s character. In the legal literature, there are capacity, choice, and character approaches to the issues of criminal culpability (Tadros, 2007). These different philosophically grounded approaches to criminal culpability rely on different criteria and assumptions about judging an offender’s culpability. However, this lack of consistency in criminal justice thinking results in important contradictions and incoherencies in how the law approaches issues of background and character in sentencing matters. Nonetheless, each of these approaches has implications for how we address and evaluate mitigation evidence.

Culpability Assessments and Types of Mitigation

Most legal commentaries on issues of background or life-history information focus on developing “proximal” forms of mitigation. Proximal mitigation refers to any factors in a defendant’s background that are directly linked with the defendant’s criminal behavior and its attendant moral significance (Garvey, 1998). This form of mitigation is used to dispute assumptions about the causes of an offender’s behavior. In our view, most lawyers and some non-lawyers (expert witnesses and

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mitigation specialists) are much more familiar with handling this type of mitigation evidence. However, there are “remote” forms of mitigation evidence that do not have a direct relationship to the crime, but can contribute to: (a) fair attributions of character, (b) differential outlooks on the connections between moral luck and criminal outcomes, and (c) the introduction of other forms of personally mitigating factors that are not barred from consideration in capital sentencing processes. In this handbook, we have selected topics for inclusion that can offer mitigation professionals new ways of thinking about both proximal and remote forms of mitigation. These new ways of thinking are grounded in the social sciences. These socially oriented lenses offer alternative ways of thinking about legal theories of culpability that go far beyond the traditional mental-state approaches commonly argued in most criminal proceedings. In fact, a fundamental aim of this book is to focus on conceptual resources that can help mitigation professionals develop socially grounded themes of mitigation. In recent years, there has been a marked increase in using developments from neuro-imaging techniques to document deficits and impairments in a defendant’s mental mechanisms. Inasmuch as these developments hold significant promise for enhancing the presentation of some types of mitigation evidence, we believe that Vincent (2010) is correct in her contention that images of diminished brain capacities cannot resolve many of the conundrums surrounding “virtuous” forms of culpability. That is, we concur with Vincent (2010) that virtue-related capacities can be documented just as well with data obtained from an effective social history investigation as with neuro-images. Like Vincent, we have concluded that the difficulty lies not in presenting and documenting evidence that supports the presences of virtuous incapacities, but in making a moral case about these “virtuous forms of culpability.” In keeping with this viewpoint, one of our primary motivations for writing this book was to provide social workers (and other mental health professionals), social psychologists, sociologists and other social science experts with methods, concepts, and frameworks for implementing effective social or life history investigations. The social or life history investigation is recognized in case law (Wiggins v. Smith, 2003; Rompilla v. Beard, 2005) and in professional norms and standards (ABA Supplementary Guidelines, see also Maher, 2008) as the cornerstone of practice in death-penalty litigation. The courts take into account the nature and quality of these investigations in evaluating the effectiveness of legal counsel when claims of ineffective counsel are raised in death cases. Given the pivotal role that these investigations play in mitigation practice, we devote an entire chapter to illustrating how mitigation professionals can use life-course theory to guide the

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development of relevant biopsychosocial evidence, including the transformation of this evidence into relevant mitigation narratives.

Organization of the Book

We had two distinct audiences in mind for this book: (1) professionals new to the field of mitigation; (2) professionals and social scientists who are looking for new ways of thinking about how to dispute assumptions about moral culpability and blame in the mitigation of capital punishment. We consider this handbook an introduction to socio-legal approaches to the mitigation of punishment in death penalty cases. Our primary aim in writing this book was to introduce mitigation professionals to new ways of thinking about how to make a case for life with mitigation narratives that are grounded in moral arguments that are closely linked with life-course evidence and theoretical concepts and frameworks from the sociocultural and the social-psychological sciences. This book is divided into two primary parts. Part I introduces readers to the foundation knowledge necessary for effective practice in the field of death-penalty mitigation. Part II focuses on assisting practitioners in developing new ways of thinking about how to link knowledge from the social sciences to the collection, framing, and the development of mitigation evidence. Part II also examines how to connect the life experiences of defendants to relevant legal and moral theories of culpability. This section of the book focuses on examining different kinds of background considerations because a defendant’s background has important implications for shaping the defendant’s (1) capacity for practical rationality; (2) motivations; (3) choices, and (4) moral character. Indeed, one of our primary aims in writing this handbook was to address the lack of attention given in the field of capital mitigation to the translation of the prior legal concepts and issues into relevant socio-legal themes of mitigation. However, this treatment of the subject does not cover all the possibilities for developing socio-legal forms of mitigation. It also does not focus on all types of case examples. In presenting this preliminary overview of socio-legal forms of mitigation, our primary objective was to broaden the thinking of practitioners about how to apply socio-legal forms of mitigation to aggravated cases of murder. This having been said, we assumed that these more difficult kinds of cases are the types that trainers should focus on in introducing mitigation professionals to this challenging field of practice. These kinds of cases offer professionals an opportunity to debate and discuss alternative approaches to developing relevant mitigation themes. In keeping with this view, we have included a number of historical cases in the presentation of the concepts described in this book because of the problems that the practitioners

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involved in these cases encountered in developing appropriate mitigation themes. These cases are a key component of Part II of the book.

Specific Aims for Part I

There were several strategic decisions that we made to structure the presentation of the foundation knowledge selected for inclusion in this handbook. One of our goals for Part I was to establish the basis in law and legal philosophy for why mitigation professionals cannot ignore issues of moral culpability when presenting evidence of background and character in the penalty phase of a capital case. We also make a strong case in Part I for why issues of character matter and why we have adopted a moral-agency model of character for challenging one of the major dilemmas encountered by mitigation professionals in aggravated cases of murder—the dilemma of how to dispute assumptions about a defendant’s bad character (Arenella, 1992; Tadros, 2007). In philosophical debates about punishment, the question often emerges as to whether we ought to punish offenders for who they are, or for what they do (Lee, 2009; Roberts, 2008). Though this issue is hotly debated in legal philosophy and in criminological writings, case law assumes that we can consider both the crime and the character of the offender in selecting a sentence of life or death in capital cases. As a consequence, we do not avoid addressing the issue of bad character in describing how to identify relevant mitigation evidence. We have adopted this position because we assume that mitigation professionals have to embrace not only how emotions can affect jurors in the selection of punishments, but also how issues of motive and character are potentially related to juror reactions to capital defendants. We recognize the compelling body of evidence in the social science literature that shows that bad character and bad motivations have a strong influence on how jurors make judgments about moral culpability (Nadler & McDonnell, 2012). That is, bad character and bad motives will activate strong emotional reactions in most jurors. For this reason, we believe that it is imperative for mitigation professionals to develop a collection of concepts for challenging assertions by prosecutors about the defendant’s bad character because “as human beings we are naturally motivated to punish people who we see as having a bad moral character or a lasting criminal disposition” (Nadler & McDonnell, 2012). In our view, many mitigation professionals have not given due regard to issues of fair attribution of character when confronting this concern. The record and moral disposition of a defendant must be placed in a context that allows for fair attributions to that defendant’s background and character. With the prior goals and objectives in mind, Chapter I introduces readers to the context of current mitigation practice by examining some of the specific legal

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standards that have contributed to the development of this highly specialized area of criminal law. It also introduces a conceptualization of mitigation proffered by Justice Sandra Day O’Connor, which helped in the organization and the selection of the materials examined in this book. Chapter 2 provides a comprehensive overview of the history of mitigation in criminal sentencing. It also provides readers with an overview of the current legal landscape in the field of capital mitigation. Chapter 3 reviews the norms and professional standards governing current practice in the field of death-penalty litigation. It also describes the roles and functions of key participants on a capital defense team with the end in mind of fostering improved levels of cooperation between the different members of the defense team, including experts selected to help in the evaluation and presentation of socially relevant forms of mitigation. In Chapter 4, we provide a detailed examination of competing legal and moral theories of background and character with implications for assessing issues of moral culpability

Specific Aims for Part II

Chapter 5 begins the second section of the book with a description of how to use theoretical frameworks and concepts to perform an effective social or life history investigation. It examines relevant scientific formulations for structuring investigations of the defendant’s life experiences for each and every phase of the defendant’s life. The chapter also describes some of the factors that contribute to good mitigation stories by illustrating how to dispel myths about inherent forms of evil possessed by capital defendants by linking the actions of the offender to ordinary ways of responding to the demands of hostile or corrupted life circumstances that have pervaded the formative development of many criminal offenders. In addition, we examine in this chapter a number of themes and concepts from the social sciences that were intended to help in the humanization of the defendant and the defendant’s actions. We also illustrate ways to connect some of the misfortunes of life found in the social histories of capital offenders to known human frailties with implications for judging the moral significance of a defendant’s criminal history or violent behavior. The mitigation narrative chosen by a defense team has to be grounded in life history evidence and social science theory. The life-course perspective described in Chapter 5 is both a concept and a theoretical perspective that we are recommending for use in making a case for a defendant’s life. Chapter 5 concludes with a description of a case that has multiple intersecting trajectories to illustrate the types of challenges that mitigation professionals are likely to encounter in trying to apply the concepts examined in this chapter. In particular, the case is employed

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to illustrate why and how issues of identity and trajectory play a critical role in the mitigation process. In our opinion, a person’s identity is what unifies the facts used to describe relevant life-trajectories. If unity is not achieved, then it is highly unlikely that the mitigation narrative will resonate with jurors. For this reason, a primary aim of this chapter is to clarify how and why identity is relevant to understanding and framing life-course trajectories. Moreover, we consider the concept of a trajectory a critical tool for aiding practitioners in developing appropriate themes of mitigation. In Chapter 6, we examine the utility of using social information processing (SIP) theory in developing themes germane to issue of practical rationality in criminal law thinking. Chapter 6 also addresses issues of volition or choice by examining how to use current psychological and criminological theories of selfcontrol to assess an offender’s inability to rationally conform their behavior to the requirements of law. That is, we examine developments in self-control theory that call into question a number of traditional ways of framing issues of choice and hostile (reactive) forms of aggression. This chapter also reviews the law of provocation to illustrate how SIP theory can extend interpretations of provocation to include cognitive distortions as valid forms of mitigation evidence. The chapter also introduces the case of Donald Eugene Harding to help practitioners test their competencies in applying the social science theories and concepts that we examined in this chapter. The social science content and psychiatric content examined in this chapter pursuant to the Harding case were not presented in the penalty phase of Don Harding’s case. However, the psychiatric and psychosocial information described in this chapter were presented in post-conviction appeals. We chose Harding’s case because it demonstrates the potential utility of adopting an integrative approach to examining the multiple dimensions of a defendant’s life history. Chapter 7 examines character flaws and weaknesses that are due to various forms of social and cultural deprivation. Our goal in this chapter is to critically examine theoretical developments in the social sciences and the moral development literature with implications for understanding variations in moral character and criminal dispositions. These developments in the scientific literature are connected to common themes employed by prosecutors to aggravate a defendant’s moral culpability. In addition, the contributions of the philosophical writings of Harry Frankfurt, Gary Watson, and Susan Wolf are reviewed to stimulate new ways of thinking about how to challenge notions of bad character and criminal propensities. In making these arguments, we rely on Harry Frankfurt’s thought experiment, Gary Watson’s analysis of the seminal case of Robert Alton Harris, and a thought experiment by Susan Wolf pursuant to the philosophical case of “Jo Jo.”

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Chapter 8 focuses on examining themes that are intended to mitigate the motivations underlying gang-related crimes in community and in prison settings. It introduces readers to the differences between intent and the motivations underlying criminal intent. It also examines a number of moral arguments from the legal and moral philosophy literature that illustrate how certain types of institutional support for organized forms of intentional and voluntary forms of crime can be mitigated. Chapter 8 also introduces readers to recent developments in social and moral psychology about deactivating moral outrage in potential jurors. The chapter concludes with suggestions for advancing knowledge in the field of mitigation practice germane to the deactivation of two mindsets described in the research and writings of Philip Tetlock (2002): an intuitive-prosecutor mindset and an intuitive-scientist mindset. The book concludes with recommendations for future research and other strategies for promoting the improvement of practice in the field of capital mitigation. In writing this book, we used terms from the legal and the moral philosophy literature that address concerns that might be considered moralizing or offensive to some scientists or some defense lawyers, such as “purely evil motivations,” “morally appropriate,” “normal,” and “ordinary murders versus extra-ordinary murders.” However, we felt compelled to rely on these morally imbued phrases and terms in introducing readers to the field of mitigation practice, because of the critical role that many of these concepts continue to play in current criminal law practice and in the history of death penalty jurisprudence. Nonetheless, the use of these phrases does not reflect in any way the authors’ views about any of these matters; instead, they are employed to describe extant factors and viewpoints that underlie some of the assumptions and justifications governing current death penalty policy and practices.

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death penalty mitigation a handbook for mitigation specialists, investigators, social scientists, and lawyers

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Foundation Knowledge for Mitigation Practice

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1

Mitigation Practice in Death Penalty Cases

there are many myths in our culture about violent crime that are consistently portrayed in various forms of media that ignore important contextual considerations (Haney, 1995). Violent offenders are often represented as having many inhuman qualities, including a propensity for enjoying the suffering of victims, inflicting senseless violence on innocent victims, and engaging in acts of cruelty without experiencing any emotions whatsoever (Baumeister, 1997). For this reason, mitigation professionals are expected to challenge many of these taken-for-granted myths about the pure evilness of all violent offenders, as portrayed in movies like Silence of the Lambs or in police dramas on television about extremely evil drug dealers who often tend to be racial or ethnic minorities (Baumeister, 1997). In order to challenge many of the false assumptions about a defendant or a defendant’s background, we assume that practitioners need theoretical frameworks that can help them isolate the critical components of an offender’s life. To be precise, it is assumed in this handbook that mitigation professionals need frameworks and theoretical concepts to help them perform social history investigations. We witnessed an explicit demand for such frameworks while attending a meeting in Chicago sponsored by the National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS). In addition, we observed at this same meeting that mitigation professionals were seeking guidance about how to translate the 3

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events making up a defendant’s life history into an oral rendering of the offender’s life experiences (a narrative) that is potentially mitigating. In response to these expressed needs, we set out to write a book that would provide lawyers, social scientists, and social workers (as well as other mental health professionals) with explicit bearings for performing social history investigations and for constructing socially relevant mitigation narratives in capital sentencing processes.

What is mitigation?

In current death penalty jurisprudence, the sentencing discretion granted jurors should be guided by factors that are relevant to making a life or death decision. Mitigation is one of these factors. A number of legal commentators have raised serious concerns about whether jurors understand phrases included in jury instructions about mitigation. Mitigation “ is an uncommon term outside of the legal sphere” (Tiersma, 1995, p. 1). Many states instruct jurors that the presence of mitigating circumstances is relevant to selecting an appropriate punishment. Yet many of these states do not define for jurors what the phrase “mitigating circumstances” means. The Supreme Court of the United States acknowledged in the case of Penry v. Lynaugh (1989) that jurors might not understand the function of mitigation without having appropriate jury instructions. In keeping with this viewpoint, mitigation professionals have to be vigilant about making sure that their presentations help in clarifying for jurors any potential misunderstanding of the function of mitigation in capital sentencing processes. Prior to 1989, California’s jury instructions directed the jury to consider any mitigating evidence in selecting an appropriate sentence in a capital case. Jurors were also provided with a list of aggravating and mitigating circumstances, but were not given a definition of what the phrase “mitigating circumstances” means. Some of the common themes included in mitigation lists are: age of the defendant, no significant criminal history, extreme emotional disturbance, victim participation or consent, relatively minor participation in the offense, under duress or domination by another person, and an impaired capacity to appreciate or to conform one’s conduct to the requirements of the law. California’s jury instructions (1989) were modified to include a definition of mitigating circumstances in response to relevant litigation about the difficulties jurors had with understanding mitigation in spite of a list of potential factors. Mitigation was defined in this revision as “any fact, condition or event which as such, does not constitute a justification or excuse for the crime in question, but may be considered as an extenuating circumstance in determining the appropriateness of the death penalty” (Cal Penal Code, 1989).

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The prior definition of mitigation still includes terms like extenuating circumstances and excuses or justifications, which most jurors and some forensic practitioners might not understand. “Essentially telling the jury that mitigating means extenuating, as several courts have done and as is now recommended in California’s pattern jury instructions, is simply defining one arcane word by means of another” (Tiersma, 1995, p. 22). Pattern jury instructions refer to the basic set of instructions established in a specific state or federal jurisdiction to provide jurors with a framework for the fulfillment of their legal charge. Unlike California, Illinois drafted jury instructions in the early 1990s that did not include as much legalese. Illinois defined mitigation as “reasons why the defendant should not be sentenced to death” (Tiersma, 1995, p. 48). How courts define mitigation is not just an academic concern for legal and other commentators, because “there have been a disturbing number of capital cases in which jurors have asked the court for a definition of ‘aggravating’ or ‘mitigating,’ or have requested a dictionary to look up the words themselves” (Tiersma, 1995, p. 15). Justice Sandra Day O’Connor has described mitigation as “facts about the defendant’s character or background, or the circumstances of the particular offense that may call for a penalty less than death” (Franklin v. Lynaugh, 1988, p. 188). Other judges and legal scholars have adopted other definitions. For instance, mitigation has also been defined as whatever information is proffered by the defense to inspire empathy, compassion, or mercy—with virtually unlimited breadth. So, what is mitigation? Depending on one’s professional training and work experience, intermixed with personal philosophical bearings, the answer can be quite different. Mitigation is defined differently across legal jurisdictions. Thirty-two states authorize the death penalty, as well as the federal government and the United States military. Many of these jurisdictions have different approaches to describing the function of mitigation in the sentencing process, as well as different definitions of mitigation in capital cases. For this reason, practitioners have to be sensitive to jurisdictional and other variations that can influence practice in their geographical location. However, we will rely heavily in our examination of mitigation practice on the definition proffered by Justice O’Connor in the case of Franklin v. Lynaugh (1988). Unlike some definitions, Justice O’Connor’s definition does not focus strictly on the circumstances of the crime. Jurors are expected to make judgments about the offender’s life and character that some definitions do not address. Does the life of the defendant provide jurors with justifiable reasons for leniency in selecting an appropriate punishment? In Justice O’Connor’s definition, personal mitigating factors can be given as much weight in mitigation of the penalty as factors surrounding the commission of the crime. For this reason, we have adopted Justice

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O’Connor’s definition because it recognizes the important role that issues of background and character play in attributing moral culpability to offenders. Moreover, we believe that her definition holds increased promise for examining the complexities of mitigation in ways that are well suited to specific forms of expertise in the social sciences that are examined in this book. In particular, social science frameworks can help mitigation professionals identify frailties in the lives of offenders resulting from various misfortunes of background or experience. This is not to suggest, however, that we will ignore other definitions of mitigation in our examination of mitigation practice, but instead to point out that some of the chapters selected for inclusion in this book were chosen primarily because they contain information that can augment the competence of practitioners in implementing Justice O’Connor’s definition of mitigation.

Current Limits on Mitigation Practice

Twenty years ago, the American Bar Association (ABA) first recognized the differences between capital defense practice and other areas of criminal law. As the primary professional organization for attorneys across the country, the ABA advised: . . . death-penalty litigation is extraordinarily complex, both for the courts and for the attorneys involved. Not only do the cases incorporate the evidentiary and procedural issues that are associated with virtually every noncapital case, but they also involve a host of issues that are unique to capital cases. These include: special voir dire of jurors, presentation of evidence going to guilt or innocence and punishment; special penalty procedures, including additional factual findings by the jury. . . . It is well established that representation of an individual in a capital case is an extraordinary responsibility placed on any lawyer. . . . Counsel must not only be able to deal with the most serious crime—homicide—in the most difficult circumstances, but must also be thoroughly knowledgeable about a complex body of constitutional law and unusual procedures that do not apply in other criminal cases. (ABA Report, 1989, pp. 43-50) Because the death penalty is supposed to be reserved for the most heinous crimes and the most culpable offenders, the primary responsibility of a lawyer defending a person facing the death penalty is to show that the client is not one of the very few people deserving a penalty of death. In order to achieve this important task, counsel must perform an extensive investigation of the life and background of the client and present a convincing case

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for life—a set of reasons, supported by evidence—that will persuade the jury that the client will be sufficiently punished by a sentence other than the death penalty. To this end, the defense attorney must learn everything possible about the client’s life, develop themes, plan the presentation of evidence to support the theme(s), and integrate the case of mitigation into all aspects of the case from voir dire to closing argument, and jury instructions. No case or client is hopeless. Serial killers and mass murderers have been spared because of the development and effective presentation of mitigation evidence (Stetler, 2007). For instance, Terry Nichol was given life without parole despite his role in planning with Timothy McVeigh the bombing of the Alfred B. Murrah Building in Oklahoma City. His intentional crime resulted in the deaths of 168 individuals. A theory of mitigation for the Nichol’s case will invariably differ from other cases, because this and other crimes are different as are the life experiences of each person involved in a capital case. Although age and good behavior during incarceration may be the starting points for one mitigation case, other factors like social deprivation, abuse, neglect, and racial segregation may be the key elements of another. The jury can give weight in their decision to many factors, including substance abuse, untreated mental illness, fear, threats, and developmental interruptions in assessing the presence of mitigating circumstances. Preparation for a capital murder trial begins with a legal and factual investigation. In addition, capital defense counsel must familiarize himself or herself with the relevant case law about “cruel and unusual punishment”—a difficult task indeed, given the speed with which relevant capital defense–oriented law evolves. Death penalty defense practitioners must ensure that all avenues of defense and mitigation are thoroughly investigated, and must: 1. Locate, interview, investigative, and prepare numerous prospective fact, forensic, and mitigation witnesses, often including family members, friends, educators, clergy, former employers, etc., many of whom will reside in different states 2. Collect, review, and analyze all possible relevant evidence, including such mitigating evidence as the defendant’s medical records, educational documentation, armed service files, and all other collateral information that can serve as life history evidence Preparation for the sentencing phase of a capital trial, in short, “requires extensive and generally unparalleled investigation into personal and family history” (ABA Report, 1989, p. 50).

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After researching both the law and facts applicable to their case, capital defense attorneys must then begin the exhaustive work of litigation: 1. Draft and file numerous pre-trial motions (many of them concerning arcane Eighth Amendment issues) 2. Prepare all defense witnesses for trial, including highly specialized, expert mitigation witnesses 3. Prepare vigorous cross-examination of all state witnesses, including sentencing-phase witnesses 4. Conduct the guilt-innocence phase 5. Conduct the unique penalty phase Effective assistance of counsel in a death penalty requires literally hundreds of hours of the attorney’s time and demands the attorney’s utmost attention and ability. In fact, death penalty litigation “has become highly specialized . . . [and] few attorneys have even a surface familiarity with seemingly innumerable refinements put on Gregg v. Georgia and its progeny” (Goodpaster, 1983, quoting Evans v. State, 1983, p. 520). Prevailing Practice Norms for Defense Counsel in Capital Cases The American Bar Association’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (February, 2003),1 outline the duties and obligations of defense counsel in their representation of a death-eligible defendant. Even in their earliest versions, these guidelines have been referenced and referred to by the U.S. Supreme Court as guides to determining what is reasonable regarding an attorney’s duties of representation (Wiggins v. Smith, 2003; Strickland v. Washington, 1984). Indeed, the Wiggins case (discussed in more detail in subsequent sections in this book) now stands for the proposition that the ABA standards for counsel in death penalty cases are the guiding rules and standards to be used in defining the prevailing professional norms in ineffective-assistance cases. These ABA Guidelines “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction” (Guideline 1.1). The Commentary to Guideline 1.1 further emphasizes that “these Guidelines are not aspirational. Instead they embody the current consensus about what is required to provide effective defense representation in capital cases” (ABA Guidelines, p. 2). Knowing how to investigate is as important as the investigation itself. Attorneys have historically understood the need to examine guilt or innocence and how the

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results of that investigation will affect the overall theory of defense. In all criminal trials, the duty to investigate a client’s participation in the charged offense is paramount in mounting effective representation. Duty to investigate guilt: The Sixth Amendment of the Constitution governs the right to legal counsel that is available for any United States citizen. Under this Amendment, defense counsel has the responsibility to conduct an adequate and independent investigation. A thorough pre-trial investigation is one of the primary duties defense counsel owes any client (Magill v. Dugger, 11th Cir., 1987). Unless a defense attorney undertakes “a reasonably substantial, independent investigation into the circumstances and the law from which potential defenses may be derived,” effective assistance cannot be provided (Baldwin v. Maggio, 1983). For this reason, “it should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness” (Osborn v. Shillinger, 1988, quoting Blake v. Kemp, 1985). As the U.S. Supreme Court held in Wade v. Armontrout (1986, p. 307): Investigation is an essential component of the adversary process. “Because the adversarial testing process generally will not function properly unless defense counsel has done some investigation into the prosecution’s case and into various defense strategies . . . counsel has a duty to make reasonable investigations.” ABA Guideline 10.7(A) indicates that “Counsel at every stage have an obligation to conduct thorough and independent investigations relating to the issues of both guilt and penalty,” and that “the investigation regarding guilt should be conducted regardless of any admission or statement by the client concerning the facts of the alleged crime, or overwhelming evidence of guilt, or any statement by the client that evidence bearing upon guilt is not to be collected or presented.” (ABA Guideline 10.7(A)(1)). Similarly, the ABA Standards for Criminal Justice Practice emphasize this fundamental duty: (a) Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigative exists regardless of the accused’s

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admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty. (ABA Standards for Criminal Justice, 3rd ed., 1993: Standard 4-4.1, The Defense Function) The Commentary to ABA Guideline 10.7 sets out the following standard for guilt/innocence-phase investigation regarding the range of potential witnesses: Barring exceptional circumstances, counsel should locate, interview, and investigative all sources of possible impeachment for potential witnesses, including, but not limited to: 1. Eyewitnesses or other witnesses having purported knowledge of events surrounding the alleged offense itself 2. Potential alibi witnesses 3. Witnesses familiar with aspects of the client’s life history that might affect the likelihood that the client committed the charged offense(s), and the degree of culpability for the offense, including: a. Members of the client’s immediate and extended family b. Neighbors, friends and acquaintances who knew the client or family members c. Former teachers, clergy, employers, co-workers, social service providers, and doctors d. Correctional, probation, or parole officers 4. Members of the victim’s family Duty to investigate mitigation: In 1984, the Supreme Court detailed the current standard for effective assistance of counsel in Strickland v. Washington. In this benchmark case, the Court enunciated a two-pronged test for ineffective assistance of counsel: (1) evidence of counsel’s deficient performance; (2) how that deficient performance prejudiced the defense. Defense attorneys are presumed, in accordance with Strickland, to have rendered “adequate assistance” and based their decisions on “reasonable professional judgment” (Strickland v. Washington, 1984, p. 690). Although many criminal defendants are convicted after shoddy legal representation, Strickland operationalized the standard of “ineffective assistance” as involving a two-pronged test of both deficient performance and actual prejudice that must be sufficient to overcome the strong presumption that counsel’s performance was constitutionally adequate (Strickland v. Washington, 1984). Wiggins v. Smith (2003) dramatically expanded a defense attorney’s obligation in capital cases to investigate mitigating evidence in preparing for the penalty phase. Specifically, the Supreme Court considered ineffective assistance of counsel in

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which the issue at hand was the reasonableness of an attorney’s strategic decision to curtail investigation of mitigating evidence. Wiggins’s legal appeal centered on a claim that his trial attorneys were ineffective because they failed to conduct a full investigation of mitigating evidence germane to his personal history. The trial attorneys had obtained limited information relating to Wiggins’s background but had not retained the services of a social historian, specifically described in the opinion as a “forensic social worker,” to prepare a complete biopsychosocial history, despite the availability of funds for that purpose. Litigation in the Maryland state courts focused on the tactical choice made by Wiggins’s trial counsel to concentrate their defense efforts on guilt/innocence issues. Upon review by the United States Supreme Court, the issue became whether the attorneys’ decision to curtail investigation before they had obtained a comprehensive social history was deemed deficient performance. In addressing this issue, Justice O’Connor focused on the prevailing professional norms and obligations regarding mitigation investigation, noting that Wiggins’s attorneys’ decision to not conduct a complete biopsychosocial investigation “fell short of the professional standards that prevailed in Maryland in 1989” and described the standard of practice for capital cases in Maryland at that time as including “the preparation of a social history report” (Wiggins v. Smith, 2003, p. 2536). The approach taken by the attorneys in this case was not considered a reasonable strategic decision by Justice O’Connor because funds were made available for retention of a consultant to the defense team to prepare a multifaceted social history. Justice O’Connor further concluded that the attorneys’ decision to abandon their investigation “made a fully informed decision with respect to sentencing strategy impossible.” Accordingly, the Wiggins decision reaffirmed the importance of developing and presenting a capital defendant’s history and background. The Wiggins decision was also a pivotal case in addressing what constitutes a properly constructed social history. Referencing the ABA Guidelines, Justice O’Connor observed that “investigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence” (Wiggins, 2003, p. 2537). Mitigation evidence includes the defendant’s “medical history, educational history, employment, and training history . . . prior adult and juvenile correctional experience, and religious and cultural influences.” Two years after Wiggins, the need for a complete and thorough social history investigation was further emphasized in Rompilla v. Beard (2005, p. 379). Trial counsel made a strategic decision not to investigate Rompilla’s history due to the client’s self-report that he had an “unexceptional background.” This is a frequent issue encountered by capital defense practitioners wherein a capital defendant may instruct the attorney neither to investigate mitigating evidence nor to present any

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at the penalty phase. In Rompilla, the trial attorney made basic attempts to investigate the client’s background and character. A small number of family members were interviewed and presented testimony about Mr. Rompilla’s good character. Mental health experts were consulted to assist in developing affirmative guilt phase defenses. However, the baseline task in mitigation investigation, as mandated in Williams v. Taylor, of collecting and analyzing the client’s life history records was not performed. A more thorough investigation during the post-conviction stage of Rompilla’s case uncovered mitigating evidence that, if presented, may have convinced the jury of his lessened culpability. Indeed, the Supreme Court gave capital defense practitioners in Wiggins and in Rompilla a clear mandate to perform a detailed, exhaustive investigation into a capital defendant’s background, history, and character. This progression in the Court’s treatment of mitigating evidence and determinations of culpability is best summarized by renowned social psychologist and death penalty expert Craig Haney. He wrote that, over a nearly thirty-year period—from 1976 to 2005—the Court had moved from merely mentioning mitigation (without defining the term or even commenting on the fact that none had been presented in the cases it was deciding) to reversing a death sentence on the basis of trial counsel’s failure to conduct an adequate background and social history investigation. A majority of the Justices in Rompilla now clearly acknowledged the importance of background mitigation that should have been uncovered, and which, if “taken as a whole,” might have “influenced the jury’s appraisal” of a capital defendant’s culpability. In both Wiggins and Rompilla, the concept of capital mitigation was given its most explicit legal and psychological rationale, and the Court finally provided death penalty lawyers with a clear mandate to vigorously investigate all potentially relevant aspects of their client’s social history. (2008, p. 21)

Investigation as the Cornerstone of Death Penalty Representation

Trial preparation must begin immediately with counsel’s investigation of the facts of the case. Generally speaking, most death penalty cases will be determined by the presentation of evidence and the application of the law to that evidence, not on legal argument. This is true without regard to whether or not the case actually proceeds to trial. The facts are critical resources available to defense attorneys at every stage of the legal proceedings, from pre-trial motion hearings to jury instructions, and to closing arguments in front of a jury.

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It is true that “an investigation well done is a case half won” (see Spears, 1939). Because knowledge of the facts of a case is the cornerstone of a lawyer’s trial preparation, investigation is as important as any other responsibility facing defense counsel. The necessity to properly investigate was established in the American Bar Association’s Standards for Criminal Justice: It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. (ABA Standards for Criminal Justice, 2nd ed., 1980: Standard 4-4.1) In 2003, the American Bar Association significantly elevated the standard of representation in death penalty cases. Their revised Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases provided the basis for the 2003 Supreme Court decision in Wiggins v. Smith, which established the requirement for a thorough and comprehensive mitigation investigation. When surveyed by the ABA Advisory Committee, the committee found that one of the most frequent post-conviction claims was that defense counsel had failed to investigate and present mitigation evidence. Appellate decisions left no doubt that the result would have been different if the jury had heard the mitigation evidence at trial. Robin Maher, director of the ABA Death Penalty Representation Project, described these failures: It became apparent that the reason for this failure was not that lawyers did not understand that the development of mitigation evidence was critical. It was that most of them just did not know how to do it properly. Lawyers are generally unprepared and ill-equipped to discover mitigation evidence without expert assistance. The special skills and abilities necessary to obtain the sensitive and sometimes embarrassing evidence about a client’s life experiences from family members and other sources are often beyond the abilities of even the most skilled courtroom lawyer. (2008, p. 769) As stated in the Wiggins case, mitigation investigation must include efforts to discover “all reasonably available” mitigating evidence, as well as evidence to rebut any aggravating evidence that may be introduced by the prosecutor. The Wiggins decision also made it clear that the Court would treat the ABA Guidelines as prevailing professional norms, whose objective is to “set forth a national standard of practice for the defense of capital cases in order to insure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by

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Foundation Knowledge for Mitigation Practice

any jurisdiction.” (National Legal Aid and Defender Association website, http:// nlada.net/library/articles/quick-guide-national-standards-indigent-defense, retrieved August 1, 2012). After reasonable evidence is identified through proper investigation, defense counsel is responsible for developing a theme or themes that link the guilt and penalty–phase strategies for directing the handling of the defendant’s case.

Mitigation Themes

A defendant’s capital crime warrants some form of explanation of why the defendant committed such a violent act. Social science confirms this point. Jurors, the victim’s survivors, and the media crave some account of what took place. Explanation of why a horrific crime occurred is a deeply rooted human concern (Presser, 2008; Scott & Lyman, 1968). For this reason, members of a capital defense team must provide a narrative that can make sense of the defendant’s behavior, history, and character. These objectives can only be accomplished with properly gathered and documented historical data that link past life experiences and life choices with the defendant’s crime and moral culpability. Capital defense teams routinely seek the assistance of mental health and social science experts in presenting their case of mitigation. This testimony can help the jury understand the impact of life experiences on the defendant’s behavior, such as by explaining the defendant’s exposure to distinct cultural influences that are unknown to members of the jury, but helped in shaping the defendant’s behavior and life choices. When choosing experts as part of the mitigation assessment, capital defense team members must consider the specific problems that have been uncovered during the investigation process. For this reason, an incomplete and undocumented social history will not enable accurate identification of the type of expert assistance required. Moreover, there is no way that an expert can perform an adequate evaluation without a comprehensive social history that is supported by lay witnesses, documents, and other evidence. Absent this support, the expert may do more harm than good. Social science practitioners represent a wide array of specialties, theories, approaches, attitudes, and evaluation protocols. Expert-selection should proceed accordingly. Differences in assessment protocols and training cannot be ignored by mitigation specialists and lawyers in carrying out their respective duties. It is imperative that they familiarize themselves with the specifics of each profession before soliciting these professionals’ assistance as expert witnesses or as consultants to members of the defense team on a specific substantive concern. Themes involving the defendant’s background and experience are essential components of any assessment of the defendant’s life choices and criminal behavior.

Mitigation Practice in Death Penalty Cases

15

The context of any human choice helps shape that choice. Defendants with extensive criminal histories are likely to be viewed more negatively than defendants without a history of crime if defense teams do not offer a narrative that can explain the context of the offender’s criminal history. There are a number of common moral assumptions about persistent offenders that should not go unquestioned by defense teams that conflict with extant theories and empirical findings about issues of crime and recidivism (Roberts, 2008). Many of these invalid assumptions conflate principles of punishment involving issues of moral desert and culpability with issues of societal protection. They also ignore fundamental fairness considerations involving issues of capacity, choice, and character that result from exposure to various forms of “moral luck” that are outside of the control of many capital offenders. Moral luck involves the assignment of moral blame to a moral agent even though the agent lacks control for the behavior. The moral relevance of this form of chance or luck is important for members of the jury to consider in weighing aggravating and mitigating circumstances.

Challenging Evidence of Aggravation

Although aggravators are present in extant statutory language, there should be a principled basis for the state’s selection of its aggravating circumstances (The Constitutional Project, 2006). The defendant’s counsel has a duty, not only to present mitigating evidence, but also to challenge flaws in statutory aggravators that “focused on harms, other than the killing itself, that were not necessarily the deliberate choice of the offender or were only impliedly related to the offender’s character, and that too frequently stressed ‘behavioral facts over mental facts’” (The Constitution Project, 2006, p. 13). This is a very important issue that will be examined in much more detail in Chapters 7 and 8 of this book. Counsel also should challenge some of the new aggravators that are associated with the life of the inner-city poor that are likely to introduce racial or class bias into the jury’s decision processes. These gang-type behaviors represent “media hybrids” of serious crime that can set off unconscious fears in jurors of being at risk from a minority defendant (The Constitution Project, 2006). For this reason, it is important for counsel to explain to jurors the pressures and pulls to joining a gang in the inner city and the failure of society to rectify or to neutralize the fundamental levels of unfairness in life choices available to individuals growing up in our inner city and rural environments. These constraints on their life choices are not the ordinary challenges faced by citizens who are raised in advantaged or other types of non-adverse environments. For this reason, mitigation professionals are expected to examine how fairness in sentencing requires neutralization of issues

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Foundation Knowledge for Mitigation Practice

of luck that place some persons at increased risk for a life of crime, while others are given advantages that they did not personally merit, but reduce their likelihood of engaging in crime, including crimes of violence. A number of variables interact to influence human development, membership in various social groups, and different types of human behavior. These variables are essential for counsel to identify in developing appropriate mitigation themes and for challenging unfair aggravators. An effective social history takes into account these variables and connects them to the violent behavior for which the client is now on trial. Although some of these connections may be direct, many more may not be immediate or obvious. It is often the case that it is the combination of failures and deficits in different areas of the client’s life that rendered him or her less able than others to not react with violence to a particular situation. Moreover, investigating a client’s social history requires counsel to make the transition from solely searching for direct facts to seeking indirect facts from the context of family lore, rumors, suspicions, fears, and family stories. This requires flexibility, sensitivity, and training about barriers to information disclosure— skills not always emphasized in the legal profession. As the United States Supreme Court has begun to define the practice of mitigation and its importance in individualized capital sentencing, social workers and social scientists are considered the group of professionals who are best equipped to assist attorneys in fulfilling their duty to investigate a client’s social history.

Summary

The aim of this chapter was to introduce readers to current guidelines and definitions that have contributed to the development of the specialized field of mitigation practice. The chapter also provides a description of some of the standards governing legal expectations for practice in the penalty phase of a capital case. Mitigation facts have to be gathered in the investigative process in ways that conform to current ABA guidelines and standards, as well as other relevant legal requirements. The implementation of these practice expectations requires knowledge and training that will be addressed in the remaining chapters of this book. Without a doubt, mitigation practice is recognized as one of the more highly specialized areas of criminal law. While it is difficult for average professionals to appreciate important legal nuisances concerning the differences between excuses, justifications, and mitigation, these concepts are much more challenging for average citizens serving on most capital juries. Juries are asked to identify relevant mitigating factors after examining facts in the case that were framed in different ways during the guilt phase of the trial process. In addition, most jurors do

Mitigation Practice in Death Penalty Cases

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not know what the term mitigation means because they lack appropriate training in identifying relevant principles for making sentencing decisions. Nonetheless, mitigation professionals are expected to adopt strategies that will help in framing for the jury the relevant mitigation evidence gathered during the mitigation investigation process. Inasmuch as this chapter has described some aspects of the current context of mitigation practice, it has not provided specific details about the evolution of mitigation in criminal law. Information on the historical role of mitigation in criminal law is described in Chapter 2. For this reason, the primary goal of this chapter was to provide a general definition of mitigation and to describe some of the specific legal standards governing the general scope of practice in the field of capital mitigation, but we will use Chapter 2 and Chapter 3 to provide a broader context for understanding this burgeoning area of practice in the field of criminal law.

Notes 1. Hereafter, ABA Guidelines.

2

History of Mitigation of Punishment

to understand what mitigation is and why it is crucial in death penalty practice, it is important for mitigation professionals to have some knowledge of the evolution of sentencing policy and of the legal landscape of case law governing capital sentencing in the United States. Philosophies and approaches to punishment of offenders have witnessed dramatic changes over the years (Ashford & LeCroy, 1993). Yet failures to chronicle some of these changes and relate them to key legal theories of culpability and punishment result in narrow, if not invalid, interpretations of the role of mitigation in death penalty cases. Sir Leslie Stephen, the famous English jurist, wrote, “At every point the system is determined by the circumstances of its growth, and you can no more account for its oddity or its merits, without considering its history, than you can explain the structure of bat or a seal, without going back to previous forms of life” (Stephen, 1895, p. 414). Today, most of the professionals involved in capital cases know very little about the evolution of criminal sentencing. They look to recent decisions in death penalty cases, but the dicta and the rulings in some of these cases often leave them at the mercy of stereotypical assumptions about appropriate sentencing principles. In this book, we assume that context is a pivotal factor for understanding not only offenses and offenders, but also the law and the policy affecting the sentencing of offenders in death penalty cases. Many attorneys, mitigation specialists, and 18

History of Mitigation of Punishment

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expert witnesses lack proper grounding in the historical context of the development of mitigation of punishment in criminal sentencing and some lack knowledge of relevant legal cases that currently governs this field of practice.

The Significance of Mitigation and Special Offense Circumstances

Mitigation and aggravation were concepts that did not emerge in Anglo-American legal traditions until the emergence of neoclassical philosophies of punishment. Prior to this shift in penal jurisprudence, most legal codes relied on classical principles of punishment derived from the writings of Cesare Beccaria (1764) and Jeremy Bentham (1780). These penal codes adhered to assumptions about moral responsibility that were eventually nullified by juries because they were at variance with common-sense principles of fairness and the emerging social science assumptions about human behavior (Saleilles, 1910). Jurors in capital cases who were asked to implement classical principles of punishment observed that some crimes of murder involved less culpability than others. This circumstance made these jurors reluctant to administer capital punishment, especially in cases involving children and women (Gay, 1993; Emsley, 2007). During this period of history, neoclassical jurists and criminologists were questioning the legitimacy of the abstract treatment of issues of criminal responsibility in classical approaches to punishment that ignored the fact that all persons are not equally culpable who commit a specific classification of crime (Emsley, 2007; Rossi, 1829). A key contribution of the neoclassical thinkers to penal jurisprudence was the balance that they struck between issues of free will and determinism in their reforms of the science of penology (Tarde, 1890; Saleilles, 1910). The neoclassicists are known for introducing legal codes that recognized that all persons who commit crimes are not equally culpable. Children, persons under duress, and individuals who were suffering from mental illness were seen as having characteristics that differentially affected their moral culpability. Their viewpoint challenged Beccaria’s assumption that the calculation of appropriate penalties should not take into account the previous history of the accused, or any forms of provocation or character (Crackanthorpe, 1901). Beccaria (1764) contended that penal codes needed to be highly formal and rational in their implementation. For this reason, Beccaria (1764) argued for the development of systems of justice that treated the individual offender as an abstraction, which would negate the biases associated with social status and other individual characteristics or circumstances. This abstract individual was also considered “perfectly responsible” and having a will that was “absolutely free” (Crackanthorpe,

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Foundation Knowledge for Mitigation Practice

1901). These legal fictions about humans were implemented in many jurisdictions, but eventually challenged by the neoclassicists. Beccaria and other classical thinkers wanted to eliminate the differential treatment of offenders based on their status, by focusing on the objective components of the crime in selecting the appropriate punishment. Like many of his contemporaries, Beccaria was troubled by the differential treatment given to aristocrats and clergy in prior sentencing systems that characterized the ancient regimes, which relied on the suspect practice of benefit of clergy (Shaffern, 2009). Benefit of clergy granted the clergy the benefit of being outside of the jurisdiction of secular courts. It also allowed for individuals to have a judgment of conviction arrested when the offense was categorized as a clergable offense. Thus, his approach to punishment focused on meting out equal punishments for the same crime, which were scaled in proportion to the severity of predefined offense classifications. However, problems associated with the implementation of these principles led to reforms in punishment, advanced by neoclassical scholars of jurisprudence (Rossi, 1829; Saleilles, 1910).

Neoclassical Principles of Punishment in the Light Of History

Inasmuch as current criminal codes in the United States and Europe support neoclassical principles, it is surprising that most textbooks on penology and criminology devote more attention to examining classical principles of crime and punishment than neoclassical principles. The neoclassical school is important because it focused on rectifying many of the problems associated with not taking into account: (a) the special circumstances of an offense; and (b) the factors that might mitigate the offender’s responsibility for their crime. Individualization of punishment gained popularity with the writings of the neoclassical thinkers, but principles of individualization of punishment have morphed with shifts in the pendulum of punishment policy over the years. The penal code of France (1810) adopted many of Beccaria’s reforms and assumptions about the use of penalties for social defense. However, it was quickly realized that acquittals were going up in capital cases because jurors were resistant to selecting fixed penalties of death for the theft of sheep or other crimes that warranted less harsh penalties than first-degree murder. Similar problems with rates of acquittal were also occurring in England and in other countries operating under classical principles of capital punishment. England handled this situation by reducing the harshness of many of its penalties, but the French code of 1832 adopted Pellegrino Rossi’s (1829) recommendation that juries should have the power to extenuate or lessen crimes or their sentences. Rossi, the famous Italian

History of Mitigation of Punishment

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neoclassical jurist, questioned Beccaria’s omission of considering a person’s character in sentencing processes (Crackanthorpe, 1901). Unlike Beccaria, Rossi (1829) and other neoclassical thinkers assumed that crime could not be deterred without the individualization of punishment. In his view, the punishment needed to fit the offender’s character and not the crime. Gabriel Tarde (1843–1904), a sociologist and neoclassical jurist, also assumed that policy makers needed to replace the moral responsibility of offenders with the character of the offender in the design of penalty systems. He assumed that liability for punishment should combine the social harm caused by the offender with the offender’s distinct characteristics (Beirne & Messerschmidth, 2005). In Tarde’s opinion (1890), the distinct psychological, social, and familial characteristics of offenders should not be subjected to uniform punishments. Tarde (1890), like Rossi, adhered to utilitarian principles of punishment that emphasized deterrence as the primary goal of punishment. For this reason, Tarde (1890) assumed that society could best be defended against crime by fitting the punishment to the specific source of crime—the offender’s character (Beirne & Messerschmidth, 2005; Vold & Bernard, 1986). This assumption was completely at odds with the reforms of Beccaria and other classical scholars of penal jurisprudence. Beccaria assumed that individualizing punishments to fit the offender would result in an arbitrary process that, in effect, would create different systems of law for different people. For this reason, Beccaria is considered one of the primary architects of the principle of uniformity in sentencing. Moreover, one of his primary aims was to eliminate the potential abuses to justice in sentencing processes associated with considerations of factors like character. Clearly, the role of character in sentencing processes will vary with the chosen justification for punishment: retribution, deterrence, rehabilitation, or incapacitation. Yet each of these aims not only has different justifications for punishment, but also different views of what should be punished: the offense, the person, or a combination of both. However, the sentencing literature often treats these potential conflicts among penal aims as if they present no real problems (Walker, 1999). In the mid-1970s, the United States witnessed a revival of interest in principles of just deserts or retribution. The (Quaker) Friends Service Committee’s seminal book We are Living Proof: The Justice Model attempted to shift the focus of sentences from the individualization of punishment to the principle of just deserts. Under just-desert approaches to punishment, issues of moral responsibility once again gained a new prominence in sentencing philosophy, as well as principles of proportionality and uniformity in sentencing. Fixed, presumptive, and flat sentences replaced individualized and indeterminate sentencing structures in many jurisdictions as a consequence of this reform in policy aims. This shift in sentencing

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Foundation Knowledge for Mitigation Practice

philosophy includes assumptions that are different from the neoclassical theories of punishment introduced in the nineteenth century. The neoclassical thinkers set out to replace moral responsibility with character as the source of criminality and punishment. However, the pendulum has swung back to retribution and to moral responsibility as appropriate aims of punishment in most jurisdictions in the United States (Garland, 2001; Wacquant, 2009). Current death penalty policy is justified with two conflicting aims of punishment: retribution and deterrence (Woodson v. North Carolina, 1976). The definitions of “character” associated with principles of deterrence have different origins from those of retribution. Although individualization of punishment is associated with reforms created in response to retribution, the recent switches in penal policies from rehabilitation to retribution have introduced even further complexity not only into examining why individuals are given the severest punishment, but also with regard to what should be punished: the severity of the offense, the offender’s culpability, or the offender’s character (Emsley, 2007).

Discretion in Capital Sentencing Legislation

How much flexibility is required by juries and judges to achieve just sentencing results? Does sentencing flexibility increase the probabilities of discrimination or gross disparities of justice? At the crux of most sentencing controversies since the establishment of classical approaches to punishment has been the issue of whether justice is best served by the use of fixed or individualized approaches to sentencing. Under classical approaches, judges were expected to sentence offenders to pre-established or fixed penalties for specific classes of crimes. These classes of crimes and punishments were placed on a scale of severity that included fixed punishments that were proportional to the severity of the offender’s crime. Obviously, murder was seen as one of the severest crimes, and in keeping with classical principles, many jurisdictions instituted mandatory death sentences for crimes of murder in the nineteenth and early twentieth centuries. In the 1930s, some states started to abolish the practice of having mandatory death sentences for crimes of murder. Tennessee was the first state to do so (McGautha v. California, 1971). Most states had instituted some form of discretionary sentencing for capital cases by the 1950s. Prior to the adoption of this discretionary approach to capital sentencing, Pennsylvania (1794) experimented with “reducing the rigors of law” by establishing a scale representing degrees of murder. A fundamental aim of this policy reform was to enable juries to make distinctions about the levels of malice in crimes, but most states found that the

History of Mitigation of Punishment

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concept of “malice aforethought” was not as useful as initially assumed (McGautha v. California, 1971, p. 199). The Supreme Court of the United States confronted issues of relevance to current capital practice about the unfettered discretion granted juries in capital sentencing in the consolidated cases of Crampton v. Ohio and McGautha v. California. In McGautha and Crampton, the petitioners challenged the lack of standards for guiding the jury’s discretion in capital cases, which they claimed was “intolerable” and essentially “lawless” (McGautha, 1971, p. 197). The Supreme Court rejected their claims, however, and, in doing so, relied on prior reasoning in the case of Winston v. United States (1899). In the Winston case, the court reversed the petitioner’s murder conviction because of the judge’s instructions to the jury about mercy. The Court ruled that the judge’s instructions in the Winston case interfered with the policy aim in capital cases of committing the selection of the punishment “to the judgement and the consciences of the jury” (Winston v. United States, 1899, p. 313). This policy position was reaffirmed several decades after Winston in the case of Andres v. United States (1948). The Court in Andres argued, “ The power [to recommend] is conferred solely upon you, and, in this connection, the Court cannot extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgement” (Andres v. United States, 1948, p. 743.). This line of reasoning about not prescribing rules for the jury was the Court’s position up until the mid-1970s. The Supreme Court commented in McGautha (1971) that it reviewed writings from the British Home Office about efforts to develop rules for governing the selection of individuals for the “Royal Prerogative of Mercy.” From their review of these writings and the writings of other authorities, the Court concluded that history has shown that it is very difficult to identify characteristics that would differentiate between the “unforeseeable case calling for mercy, as was the original purpose” and “the extraordinary cases calling for the death penalty, which is its present-day function” (McGautha, 1971, p. 205). This dictum was written in support of the Court’s view that mercy was a justifiable aim, but it is important to note that mercy is often inappropriately conflated with conceptions of mitigation of punishment. Mitigation and mercy are not necessarily equivalent concepts (Walker, 1999). Mitigation was created to ensure that individuals were not punished beyond what they justly deserved (Walker, 1999). Mercy, on the other hand, is seen as a benefit provided to persons who deserve punishment, but who are granted a special benefit that is less severe than what is deserved, and as a consequence, mercy is considered by some philosophers as being incompatible with notions of justice (Murphy & Hampton, 1988).

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Foundation Knowledge for Mitigation Practice

The reasoning in McGautha is important because it conflicts in some ways with subsequent rulings in the same decade regarding the importance of structuring the discretion of sentencing authorities. In McGautha, the Court did not question the petitioners’ opinion “that jury sentencing discretion in capital cases was introduced as a mechanism for dispensing mercy—a means for dealing with the rare cases in which the death penalty was thought to be unjustified” (McGautha v. United States, 1971; p. 204). Instead, the Court questioned the petitioners’ observations about the failure of legislatures to provide a rational mechanism for differentiating between cases warranting mercy and cases warranting death. The Court wrote, “To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability” (McGautha v. United States, 1971, p. 205). However, this viewpoint was reversed in subsequent cases dealing with the arbitrary application of the death penalty following the seminal case of Furman v. Georgia (1972). Clearly, the Furman case introduced several reforms in capital sentencing practices that are important for mitigation professionals to examine and understand. Post- Furman Legal Landscape

Since the mid-1970s it has been clear that the touchstone of constitutional death penalty statutes is individualized decision-making. In 1972, after the United States Supreme Court struck down the discretionary approach to capital punishment in Furman v. Georgia, new sentencing procedures were enacted that permanently altered the legal landscape in capital litigation. The first of these new post-Furman changes is perhaps the fundamental principle in capital sentencing of having a bifurcated trial process. The sentencer learns of information concerning the crime and the offender in two separate trials. If convicted of an offense in which an offender would be eligible for the death penalty, there is a separate penalty trial at which the evidence is focused on the defendant’s background and the circumstances of the offense. Due to the second post-Furman requirement, the jury must be given standards to guide their discretion in using the prior information to recommend an appropriate sentence. Guidance is needed for achieving structure in capital cases because “there is a significant difference between the death penalty and lesser punishments” (Beck v. Alabama, 1980, at 637). Many states began to develop schemes of aggravating and mitigating factors after Furman that were designed to guide the discretion of jurors. The Supreme Court approved these “guided discretion” models of capital punishment in

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Gregg v. Georgia (1976), reasoning that the concerns expressed in Furman “can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance” (Gregg v. Georgia, 1976, p. 195). Thus, any juror, in order to follow the law applicable to a capital case, and thus to be qualified to serve, must not automatically impose the death penalty and must be able to consider aggravating and mitigating factors in identifying the worst of the worst forms of first-degree murder. That same year, in Woodson v. North Carolina, the Court decided that a constitutional death sentencing scheme should allow jurors to engage in a particularized consideration of the relevant facets of the “character and record of the individual offender,” taking into account any “compassionate or mitigating factors stemming from the diverse frailties of humankind” (Woodson v. North Carolina, 1976, p. 305). Woodson outlined Eighth Amendment requirements for states in establishing their capital sentencing systems—“the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Two years later in 1978, the Court broadened the scope of what must be considered in mitigation to include anything about a capital defendant’s life and background. In Lockett v. Ohio (1978), the Court ruled that the jury must consider “any aspect of the defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death” (at 604). Lockett and its progeny The line of cases following Lockett addressed operational concerns about the practice of mitigation. Penry v. Lynaugh (1989) is widely known for having provided a core requirement in capital sentencing procedures by holding that any capital sentencing scheme must provide for an “individualized assessment of the appropriateness of the death penalty.” This individualized assessment is achieved only by allowing the sentencer “to consider and give effect to any mitigating evidence relevant to a defendant’s background, character, or the circumstances of the offense” (p. 327). The “Lockett doctrine,” as it is often referred to by legal scholars, defined a new type of legal evidence, called “mitigating evidence,” as well as a series of requirements concerning treatment of that evidence in any capital sentencing process. These requirements, set forth in Lockett and its progeny, mostly guarantee that mitigating evidence will be considered in the capital sentencer’s decision. Mitigating evidence, as operationalized in the above case law, can therefore only be defined in reference to a particular case and the possibility that some of those facts could conceivably give rise to an argument against imposition of the death

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Foundation Knowledge for Mitigation Practice

penalty. If evidence bears on “any aspect” of the defendant’s character, record, or crime (Lockett, at 12), and if it could support a reasonable argument for a sentence less than death (McKoy v. North Carolina), then it is by definition mitigating evidence. Any evidence about the client or offense that might support an argument against the death sentence in a particular case is protected under Lockett’s definition, which establishes the conditions under which the court can transfer the hard moral choice that must be made in any death penalty case to the sentencers (i.e., jurors). These morally appropriate impositions of the death penalty are best described by Bilionis (1991): Identifying and articulating the wide array of moral concerns that should shape life’s many choices—a sort of “moral calculus”—and applying those concerns in diverse situations is a mind-boggling task. It is especially confounding when the choice is as momentous as the choice between life and death. This difficulty can no doubt present constitutional complexities, which will be taken up soon enough. But for the moment, set aside the important question of how moral appropriateness is determined and focus on the more basic proposition which must be established first: American society should not execute a human being, in lieu of sentencing that person to long-term or life imprisonment, unless it can be said confidently that the death penalty is morally appropriate for the offense and the offender at hand. (p. 3) Thus, by Lockett and its progeny, the Court sought to make the imposition of the death penalty less arbitrary, as well as narrow the class of persons eligible for the death penalty. Capital defendants are entitled to present, and the sentencer must consider, a defendant’s troubled childhood (Eddings v. Oklahoma, 1982), good behavior while incarcerated (Skipper v. South Carolina, 1986), and mental illness (Zant v. Stevens, 1983). In the quarter-century following Furman, the Court provided constitutional protections and litigation procedures for the admission of a client’s life history and character. However, case law discussions of why a capital defendant’s background information was relevant and necessary to a moral determination of punishment fell short of accountability measures. Capital defense attorneys, while guided by these landmark decisions, were not provided with a minimum standard of representation or specific measures that needed to be undertaken in order to properly investigate a client’s life history. Finally, in 2000, a crucial ruling came down in the case of Williams v. Taylor. In this case, the Court reaffirmed the view of mitigation introduced in Lockett and its

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progeny. The case addressed an issue of ineffective counsel whereby the counsel was found ineffective for failing to prepare for the penalty proceeding until a week before trial and failing to conduct a thorough investigation of the defendant’s background. Justice Stevens described at some length the mitigation that would have been found: They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams nightmarish childhood. . . . Had they done so, the jury would have learned that Williams’s parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely beaten by this father, that he had been committed to the custody of the social services bureau for two years during his parents’ incarceration (including one stint in an abusive foster home) and then, after his parents were released from prison, had been returned to his parents’ custody. (at 1514) Indeed, Williams provided the first clarification of what tasks must be undertaken in mitigation investigation. The Williams standard sets forth the need to collect life history records and that it is only after those documents have been collected that a meaningful investigation can proceed. This requirement of collecting and analyzing documentary evidence altered the way in which appellate courts judged effective assistance of counsel.

Narrowing Eligibility for the Death Penalty

Over the past few years, capital defense attorneys have obtained significant protections for certain populations of defendants. When considering the relationship between individual defendant factors and capital punishment, the logical starting point is the United States Supreme Court’s 1989 decision in Penry v. Lynaugh. During the sentencing phase of Penry’s trial, the defense argued that the imposition of the death penalty would violate the Eighth Amendment’s prohibition against cruel and unusual punishment due to Penry’s mental retardation. After years of appellate litigation in the state of Texas, the United States Supreme Court granted certiorari to determine whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of a defendant who is mentally retarded. Specifically, Penry’s attorneys argued that execution of a mentally retarded defendant would violate the Eighth Amendment of the United States Constitution because individuals with mental retardation do not possess a level of moral culpability sufficient to justify a death sentence.

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Foundation Knowledge for Mitigation Practice

The Supreme Court rejected the defense’s arguments and held that executing mentally retarded defendants is not a per se violation of the Eighth Amendment but that mental retardation should be considered as a mitigating factor during the sentencing phase of a capital trial, thus ensuring a individualized sentencing decision required by prior Supreme Court cases. Mental retardation was viewed in Penry as a mitigating factor rather than as a basis for excluding a defendant from the reach of capital punishment. In a more recent decision, Atkins v. Virginia (2002) provided further consideration by the United States Supreme Court regarding the Eighth Amendment’s ban on cruel and unusual punishment. Again, the Court granted certiorari to address the same question it had answered thirteen years earlier in Penry—i.e., whether executing a mentally retarded defendant would violate the Eighth Amendment. In a decision reversing its holding in Penry, the Supreme Court held in Atkins that executing a mentally retarded defendant is excessive in light of evolving standards of decency. The Court stated that although the deficiencies associated with mental retardation do not exempt the individual from punishment, they do diminish moral culpability to the point where death is not an appropriate punishment. The Court concluded that executing a mentally retarded defendant would not further the primary goals of capital punishment—i.e., retribution and deterrence. The Atkins decision effectively narrowed the class of offenders eligible for the death penalty by excluding all who are mentally retarded. Subsequent cases have added to the jurisprudence surrounding mental retardation and the death penalty. In Tennard v. Dretke (2004), the Supreme Court held that a low IQ, regardless of whether it is in the range of mental retardation, is a relevant mitigating factor at capital sentencing proceedings even if it is not directly related to the offense. Tennard offered capital defense practitioners with another important guideline for use in investigating their client’s life history. Mitigating circumstances had always included factors related to the crime, such as the client’s lesser involvement, or domination by another person. However, after Tennard, it was no longer necessary for mitigating evidence to be causally related to the crime. Prosecutors’ stock legal arguments that a particular life experience or historical context endured by the defendant was not directly related to the circumstances of the offense were no longer the touchstone for evaluating background experiences. Capital defense attorneys have fought tenaciously to establish that the law requires no nexus between mitigation and the crime (Tennard v. Dretke, 2004). Case law now supports the view that there are some aspects of a defendant’s background that are inherently mitigating: Impaired intellectual functioning is inherently mitigating. Today, society views mentally retarded offenders as categorically less culpable than the

History of Mitigation of Punishment

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average criminal. A mentally retarded individual does not have to establish a nexus between mental capacity and the crime before the Eighth Amendment prohibition on execution is triggered. . . . Impaired intellectual functioning has mitigating dimension beyond the impact it has on the individual’s ability to act deliberately. (Tennard, at 287–288). There are other forms of status and background that are also considered inherently mitigating. Juveniles and death eligibility Over time, the constitutionality of capital punishment for juveniles has been debated and questioned in academic and legal circles. Until 2005, the United States was the only country in the world that permitted the execution of juveniles. Despite the recognition of age as a mitigating factor, it was not until the 1980s that a specific age was established that demarcated the constitutionality of sentencing a juvenile to death. In Thompson v. Oklahoma (1988), the Court established that sentencing a 15-year-old convicted of first-degree murder to death violated the Eighth Amendment. The Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer-pressure than is an adult. (p. 835) However, in the following year, the Court’s decisions in Stanford v. Kentucky and Wilkins v. Missouri established that it was permissible to execute convicted murderers sixteen years of age or older. After the landmark ruling in Atkins v. Virginia banning execution of mentally retarded defendants, debates ensued about the Court’s evaluation of evolving standards of decency and the developmental justifications provided in Atkins as being strikingly similar to arguments against capital punishment for juveniles. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reactions. (p. 318)

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In 2005, the Court upheld, in Roper v. Simmons (re a 2003 Missouri State Supreme Court decision) that execution of juveniles violates the Eighth Amendment affirming that it is no longer constitutional to execute anyone for a crime committed when he or she was under the age of eighteen years.

Legal Challenges to Sentencing Factors in Penalty Decisions

Judges in capital cases were able to adjudge the presence or absence of aggravating or mitigating circumstances in states like Arizona up until the Supreme Court decision of Ring v. Arizona (2002). The Ring decision changed prior views of the role of “sentencing factors” in capital cases. The concept of sentencing factors was first employed in the case of McMillian v. Pennsylvania (1986). In this non-capital case, the Supreme Court of the United States held that judges could find facts that increased the mandatory minimum sentence, but these aggravating facts could not extend the sentence beyond the maximum sentences prescribed by the legislature. At issue in this case was whether the sentencing factors (visible possession of a firearm) that judges evaluated in deciding on an appropriate sentence in McMillian violated the defendant’s constitutional rights. In a line of cases leading up to Ring, the Supreme Court of the United States grappled with clarifying the facts affecting the severity of a defendant’s punishment that needed to be determined beyond a reasonable doubt by a jury. In the case of In re Winship (1970), the Supreme Court of the United States established the principle that juries needed to decide on every element of a criminal offense by the standard of proof beyond a reasonable doubt. This principle was reexamined in a number of subsequent cases involving specific legal challenges to existing homicide statutes (Patterson v. New York, 1977; Mullaney et al. v. Wilbur, 1986) and challenges to the enhancement of punishments based on judicial judgments about the presences of sentencing facts not associated with establishing the specific elements of the crimes (McMillian v. Pennsylvania, 1986; Walton v. Arizona, 1990; Apprendi v. New Jersey, 2000). The Supreme Court held in Patterson v. New York (1977, pp. 207–209) that, if a state chooses to identify a factor that can mitigate the degree of criminality or punishment, it did not have to prove this fact beyond a reasonable doubt. The Supreme Court also upheld a Pennsylvania statute that allowed a judge to enhance the sentence within a legislatively prescribed range. The Supreme Court concluded in McMillian that due process did not require the state to prove visible possession of a firearm beyond a reasonable doubt, since (a) the state legislature had expressly

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provideded that such possession was not an element of the enumerated crimes but instead a sentencing factor that was to come into play only after the defendant had been found guilty of one of those crimes beyond a reasonable doubt, (b) the statute created no presumption of the existence of facts essential to guilt, nor did it relieve the prosecution of its burden of proving guilt, and (c) the statute had not altered the maximum penalty for the crime committed nor created a separate offense calling for a separate penalty, but operated solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it. (McMillian v Pennsylvania, 1986, p. 84) However, Justice Stevens dissented in this case because he opined that reasonable doubt should be required whenever any aggravated fact or component of the crime “gives rise to both special stigma and a special punishment” (McMillian v. Pennsylvania, 1986, p. 104). His viewpoint in this dissent was subsequently adopted by the Court in future rulings on issues involving judgments about aggravating factors. Prior to coming to Justice Stevens’s reasoning on determining aggravating factors, the Supreme Court reaffirmed its viewpoint that judges had the authority to decide on sentencing factors in capital cases (see Walton v. Arizona, 1990). In the Walton case, the petitioner argued that “every finding of fact underlying the sentencing decision must be made by a jury, not by a judge, and that the Arizona scheme would be constitutional only if a jury decides what aggravating and mitigating circumstances are present in a given case and the trial judge then imposes sentence based on those findings” (Walton v. Arizona, 1990, p. 639). The Court held in this case, however, that the Constitution does not require a jury to impose a sentence of death. The Court reasoned in Walton that the finding, or the not-finding, of aggravating factors in Arizona’s sentencing scheme neither precluded the death penalty nor resulted in the defendant’s acquittal. The Court further considered these findings as standards that were designed to guide the sentencing choice between alternative verdicts of death or imprisonment and not separate penalties or crimes, which would have warranted that a jury make the decision (Walton v. Arizona, 1990). The sentencing framework in Arizona that was affirmed in Walton was revisited in Ring after the Court’s ruling in the non-capital case of Apprendi v. New Jersey (2000). In the Apprendi case, the prosecution sought an enhancement of the defendant’s punishment because the crime of shooting into the home of an African American family was committed with a racial animus. After hearing evidence in the sentencing hearing about the issue of racial animus, the judge found that the

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crime was committed out of racial animus. This finding by the judge resulted in an enhanced sentence of two years beyond the statutory maximum. This sentencing judgment was appealed to the Supreme Court of the United States, and the Court held in this case that “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt” (Apprendi v. New Jersey, 2000). The reasoning in this ruling had an effect on the subsequent case of Ring v. Arizona (2000), which overruled the Court’s prior reasoning in Walton. In Ring, the Court found that the Sixth Amendment required a jury to determine the existence of aggravating factors necessary for the imposition of the death penalty. Writing for the majority, Justice Ginsburg wrote that Apprendi’s reasoning was irreconcilable with Walton. In response to these inherent contradictions, the Court held in Ring that a jury had to make a determination of any fact that would increase the maximum penalty. As a consequence of this decision, the provision in Arizona’s death-penalty statute that afforded judges the authority to determine aggravating circumstances was no longer considered constitutional. The current law of the land requires aggravating circumstances to be determined beyond a reasonable doubt by a jury. However, it is important to note that mitigating circumstances still do not need to be proved beyond a reasonable doubt by the defense in presenting mitigating circumstances for the jury’s consideration in selecting an appropriate punishment of death or life in prison.

Summary

This chapter provides a brief overview of the history of mitigation in criminal and capital sentencing. It also examines some of the substantive and procedural clarifications of the penalty phase of capital cases provided by the Supreme Court of the United States following Gregg v. Georgia. The chapter demonstrates how the legal landscape has had a rich history of debate about the role of discretion in capital sentencing processes. Juries are currently granted substantial discretion in determining mitigating circumstances, but their decisions about aggravators have to have appropriate structures and procedures for guiding the jury’s discretion. Parallel to many of these seminal legal decisions influencing current capital practice, the capital defense community began to outline specific responsibilities that defense attorneys must fulfill during the course of their representation of defendants in capital cases. These roles and responsibilities and the responsibilities of other members of the defense team are described in greater detail in the next chapter.

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Mitigation Professionals: Roles and Responsibilities

the importance of individualized sentencing and the need to achieve the highest degree of certainty in capital punishment have led to several key decisions that have provided guidance to defense attorneys about their responsibilities in preparing a capital case. A thorough investigation of the life of the client is absolutely essential in defending a capital case. Counsel has a duty to investigate the client’s life history and adverse developmental experiences in addition to the substantive case and possible defenses. In order to do this, counsel must assemble a multidisciplinary team of lawyers, investigators, social scientists, and other experts who can obtain the information. The skills and expertise required to effectively defend and investigate a capital case are broad and multidisciplinary in nature (ABA Guideline 10.4, commentary). The Sixth Amendment provides that a criminal defendant has the right to the assistance of an attorney at trial. Nationally endorsed professional standards for criminal defense representation have long accepted the need for non-legal support in order to provide competent legal assistance. This need is particularly apparent in capital cases, as courts have recognized that investigating “human frailty” is vastly different in scope and expertise than evaluating law-enforcement reports and interviewing eyewitnesses. The capital defense team is the infrastructure through which cases are won. Expertise is required at both ends of the spectrum 33

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of roles exercised in defending a defendant in a capital case. “The need for a multidisciplinary defense team in capital cases is evident from the complexity of the litigation and the range of factual issues to be investigated. Mitigation specialists bring critical skills to the team, but every team member needs to be sensitized to the problems of developing the case for life” (Stetler, 2001, p. 55). Although there are core professionals represented on capital defense teams, the specifics of the case and the needs and particular issues of the client may necessitate additional specialized expertise. The affirmative case for sparing the defendant’s life will be partly composed of information uncovered in the course of the investigation process. Therefore, the thoroughness and specialized expertise required to conduct the investigation cannot be overemphasized. Guideline 4.1, “The Defense Team and Supporting Services,” calls for “assembly of a defense team that will provide high quality legal representation,” and further specifies: 1. The defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist. 2. The defense team should contain at least one member qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments.

Composition of Capital Defense Team

Based on an earlier set of guidelines published in 1989, the 2003 ABA Guidelines sought to provide capital defense attorneys with a set of clear directions about how to defend and investigate a death penalty case. The capital defense team “should consist of no fewer than two attorneys qualified in accordance with ABA Guideline 5.1, an investigator, and a mitigation specialist” (Guideline 4.1(A)(1)). The investigator The guilt-phase investigator assists counsel in developing the facts and issues related to the guilt-or-innocence phase of a trial. The assistance of an investigator who has received specialized training is indispensable to discovering and developing the facts that must be unearthed at trial or in post-conviction proceedings. Although some investigative tasks, such as assessing the credibility of key trial witnesses, appropriately lie within the domain of counsel, the prevailing national standard of practice prohibit counsel from shouldering primary responsibility for

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the investigation. Counsel lacks the special expertise required to accomplish the high-quality investigation a capital defendant is entitled to, and simply has too many other duties to discharge in preparing the case. Moreover, the defense may need to call the person who conducted the interview as a trial witness. As a result, an investigator should be part of the defense team at every stage of a capital proceeding (Guideline 4.1). Jill Miller (2003) has delineated some of the responsibilities of guilt phase investigators to the penalty phase, including development of evidence to challenge and/ or lessen aggravation, investigation of prior offenses, and assisting the mitigation specialist in uncovering evidence to support a sentence less than death. However, their primary responsibilies rest with helping counsel examine police reports and interview fact witnesses with implications for developing alternative theories of the offense in the guilt phase of the process. Unlike the mitigation specialists, they do not have to have expertise in mental health matters. Defense counsel The ABA Guidelines assign to lead counsel the responsibility for conducting a thorough investigation relating to both guilt and penalty (Guideline 10.4 (B)). Guideline 5.1 was reorganized in the 2003 revision in order ensure high-quality representation for capital defendants. Under this new qualification standard, capital defense attorneys must demonstrate: • Substantial knowledge and understanding of the relevant state, federal and international law, both procedural and substantive, governing capital cases; • Skill in the management and conduct of complex negotiations and litigation; • Skill in legal research, analysis, and the drafting of litigation documents; • Skill in oral advocacy; • Skill in the use of expert witnesses and familiarity with common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and DNA evidence; • Skill in the investigation, preparation, and presentation of evidence bearing upon mental status; • Skill in the investigation, preparation, and presentation of mitigating evidence; and • Skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses, and opening and closing statements.

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To satisfy the performance standards set forth in this Guideline, capital defense attorneys are required to participate in continuing education training specifically targeting the heightened practice responsibilities inherent in capital defense. Many jurisdictions have quantitative requirements for appointment in capital cases, focusing on counsel’s trial experience and length in the profession. Defense counsel must make it clear to all members of the capital defense team that they are agents of counsel in the legal representation of the client. Thus, the Sixth Amendment protections that exist between the attorney and client, such as work-product protection and privilege, extend to all team members. If not afforded the assistance of non-legal team members as stated in Guideline 4.1, counsel is obligated to preserve the record for future appeal. This Guideline also states that additional expert assistance beyond the core team of two attorneys, an investigator, and a mitigation specialist is almost always required. However, the posture and investigation of the case is the ultimate responsibility of defense counsel, and all supporting defense team members are allocated duties to provide the high-quality representation demanded by the ABA Guidelines and Supreme Court decisions. It is counsel’s duty to monitor and direct the work of the team; however, team members have a corresponding responsibility to keep counsel informed as to the progress of their work (Guideline 10.4 (B)). The mitigation specialist In 1998, the Judicial Conference of the United States defined the duties of mitigation specialists: They are generally hired to coordinate an investigation of the defendant’s life history, identify issues requiring evaluation by psychologists, psychiatrists, or other medical professionals, and assist attorneys in locating experts and providing documentary materials for them to review. Although most often they assist counsel in assembling and interpreting the information needed in the penalty phase of a capital case, in some cases mitigation specialists are also called to testify about their findings. . . . Without exception, lawyers stressed the importance of a mitigation specialist to high quality investigation and preparation of the penalty phase. (Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, “Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation,” May 1998, p. 24) Ever since the Wiggins landmark ruling in 2003, the United States Supreme Court has acknowledged the importance of non-legal assistance in assisting defense

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counsel in strategic decisions. The compelling mitigation evidence in Wiggins that was discovered in the post-conviction investigation led to the revised edition of the ABA Guidelines later that year and a clearly defined norm for defining the core capital defense team to include a mitigation specialist. Today, employment of a qualified mitigation specialist is an accepted standard of care in all capital cases, regardless of jurisdiction or level of practice. Since the publication of the revised Guidelines in 2003, many courts and practitioners have requested guidance about the nature and scope of mitigation investigation, the qualifications of mitigation specialists, whether they should be certified or licensed, and whether specific training programs in mitigation should be certified. Some practitioners argue that mitigation specialists do not form a separate and free-standing profession. Regardless, the mitigation specialist is seen as an integral part of the capital defense function. Social work has come to be viewed as the profession that is most closely akin to the specialty of mitigation investigation, but the title “mitigation specialist” has been applied to a wide range of practitioners in capital cases who gather historical information about the client—criminologists, paralegals, law students, investigators, psychologists, anthropologists, journalists, sociologists, and so on. The ABA Guidelines describe a mitigation specialist as a mental health professional who possesses: Clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. (ABA Guidelines, 2003, p. 959) Inherent in the approach to competent capital defense dictated by the Guidelines and as adopted by Wiggins (2003) and its progeny is the recognition that the mitigation function is multifaceted and trans-disciplinary, even though the ultimate responsibility for investigation rests with counsel. Due to the increasing importance of the mitigation function in the defense of capital cases, and because counsel must rely on the assistance of other professionals in developing mitigating evidence, Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases was prepared to reflect the prevailing professional norms. These supplemental Guidelines clarified the mitigation function on the capital defense team.

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Supplementary Guideline 4.1 discusses the role of a mitigation specialist as an agent of defense counsel. • In performing the mitigation investigation, counsel has the duty to obtain services of persons independent of the government and the right to select one or more such persons whose qualifications fit the individual needs of the client and the case. Applications to the court for the funding of mitigation services should be conducted ex parte, in camera, and under seal. • Counsel has a duty to hire, assign or have appointed competent team members; to investigate the background, training, and skills of team members to determine that they are competent; and to supervise and direct the work of all team members. Counsel must take whatever steps are necessary to conduct such investigation of the background, training, and skills of the team members to determine that they are competent and to ensure on an ongoing basis that their work is of high professional quality. • All members of the defense team are agents of defense counsel. They are bound by rules of professional responsibility that govern the conduct of counsel respecting privilege, diligence, and loyalty to the client. The privileges and protections applicable to the work of all defense team members derive from their role as agents of defense counsel. The confidentiality of communication with persons providing services pursuant to court appointment should be protected to the same extent as if such persons were privately retained. Like counsel, non-attorney members of the defense team have a duty to maintain complete and accurate files, including records that may assist successor counsel in documenting attempts to comply with these Guidelines. • It is counsel’s duty to provide each member of the defense team with the necessary legal knowledge for each individual case, including features unique to the jurisdiction or procedural posture. Counsel must provide mitigation specialists with knowledge of the law affecting their work, including an understanding of the capital charges and available defenses; applicable capital statutes and major state and federal constitutional principles; applicable discovery rules at the various stages of capital litigation; applicable evidentiary rules, procedural bars, and “door-opening” doctrines; and rules affecting confidentiality, disclosure, privileges, and protections. (pp. 680–681) Supplementary Guideline 5.1 discusses the skill sets required in capital mitigation investigation, such as cultural competency, knowledge of mental health signs and

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symptoms, interviewing techniques including overcoming barriers to disclosure, and life-history record collection. • Capital defense team members should demonstrate a commitment to providing high quality services in the defense of capital cases; should satisfy the training requirements set forth in these Supplementary Guidelines; and should be skilled in the investigation, preparation and presentation of evidence within their areas of expertise. • The defense team must include individuals possessing the training and ability to obtain, understand and analyze all documentary and anecdotal information relevant to the client’s life history. Life history includes, but is not limited to: medical history; complete prenatal, pediatric and adult health information; exposure to harmful substances in utero and in the environment; substance abuse history; mental health history; history of maltreatment and neglect; trauma history; educational history; employment and training history; military experience; multi-generational family history, genetic disorders and vulnerabilities, as well as multi-generational patterns of behavior; prior adult and juvenile correctional experience; religious, gender, sexual orientation, ethnic, racial, cultural and community influences; socioeconomic, historical, and political factors. • Mitigation specialists must be able to identify, locate and interview relevant persons in a culturally competent manner that produces confidential, relevant and reliable information. They must be skilled interviewers who can recognize and elicit information about mental health signs and symptoms, both prodromal and acute, that may manifest over the client’s lifetime. They must be able to establish rapport with witnesses, the client, the client’s family and significant others that will be sufficient to overcome barriers those individuals may have against the disclosure of sensitive information and to assist the client with the emotional impact of such disclosures. They must have the ability to advise counsel on appropriate mental health and other expert assistance. • Team members must have the training and ability to use the information obtained in the mitigation investigation to illustrate and illuminate the factors that shaped and influenced the client’s behavior and functioning. The mitigation specialist must be able to furnish information in a form useful to counsel and any experts through methods including, but not limited to: genealogies, chronologies, social histories, and studies of the cultural, socioeconomic, environmental, political, historical, racial and

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religious influences on the client in order to aid counsel in developing an affirmative case for sparing the defendant’s life. • At least one member of the team must have specialized training in identifying, documenting and interpreting symptoms of mental and behavioral impairment, including cognitive deficits, mental illness, developmental disability, neurological deficits; long-term consequences of deprivation, neglect and maltreatment during developmental years; social, cultural, historical, political, religious, racial, environmental and ethnic influences on behavior; effects of substance abuse and the presence, severity and consequences of exposure to trauma. Team members acquire knowledge, experience, and skills in these areas through education, professional training and properly supervised experience. (pp. 682–683) Mitigation specialists must possess the knowledge and skills to obtain all relevant records pertaining to the client and others. They must understand the various methods and mechanisms for requesting records and obtaining the necessary waivers and releases, and the commitment to pursue all means of obtaining records. The tasks of a mitigation specialist can be divided into several broad areas: collecting and analyzing mitigating evidence, developing mitigation themes, and advising counsel of relevant social facts that support specific legal claims. In order to compile this comprehensive and well-documented psychosocial history of the client, the mitigation assessment must: 1. Analyze the information in terms of impact on development, identify mitigating themes in the client’s life history 2. Identify the need for expert assistance, 3. Assist in locating appropriate experts, 4. Provide social history information to experts to enable them to conduct competent and reliable evaluations 5. Work with the defense team and experts to develop a comprehensive and cohesive case in mitigation. Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team ensures that the presentation made at sentencing is integrated into the overall preparation of the case, rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict. For all of these reasons, the use of mitigation specialists has become part of the existing standard of practice in capital cases because the involvement of the

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mitigation specialist helps ensure high-quality investigation and preparation of the penalty phase of the case. Role of other experts on the capital defense team To consider mitigation as merely a diagnosis or condition to be expressed to the jury at the last stage of the trial process greatly underestimates the impact that social science experts can have. A defendant’s right to have a competent mental health expert to assist in his defense is so fundamental and so important that it is guaranteed by the Fourteenth Amendment (Ake v. Oklahoma, 1985; Smith v. McCormick, 1990). Virtually all capital cases require the involvement of other experts to assist in preparation for and presentation of evidence at all phases of the trial. ABA Guideline 4.1(B) calls for the assistance of all expert, investigative, and other professional services reasonably necessary. More than in other types of criminal cases do prosecutors and defense attorneys rely on experts. A wide range of experts may be needed to accommodate the issues facing counsel in both phases of the trial. In the guilt phase, experts may come from forensic science disciplines such as pathology, serology, fingerprint examination, hair or fiber analysis, ballistics, DNA evidence, or medical examiner offices. Testimony of a mental health expert may also be introduced in the guilt-phase if mental status is at issue. The circumstances of a particular case will often require specialized research and expert consultation. Most social science experts will be called during the penalty phase. While mental health experts—psychiatrists, psychologists, neuropsychologists, and clinical social workers—are the most common, many other types of experts might be needed to prepare and present the case in mitigation (ABA Guideline 4.1, commentary, 10.4, commentary). The mitigation specialists and defense team members with mental health expertise can advise the attorneys on the type of experts to retain, and can assist in locating other appropriate experts. Sufficient life history investigation must occur first to determine what types of experts are needed. The traditional use of a psychologist or psychiatrist may not necessarily be appropriate. In a Ninth Circuit habeas case, the Court, citing the defense attorney’s failure to investigate the defendant’s history, ruled that such a failure constituted ineffective assistance of counsel at the penalty phase and held that “counsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult” (Caro v. Calderon, 1998). The due process and equal protection components of the Fourteenth Amendment require that social scientists render a level of care, skill, and treatment that is recognized by reasonably prudent health care professionals as being acceptable under similar circumstances. On the basis of generally agreed-upon principles,

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the standard of care for any forensic mental health examination requires careful assessment of all factors contributing to or causing dysfunction. Regardless of the expert’s role, it is clear that gathering and processing social-history information is a highly specialized skill. The role of the expert in a capital case is to provide an extension of the themes of narrowing the class of offenders eligible for the death penalty by taking into account relevant, individualized consideration that holds significant promise for heightening the reliability of the jury’s sentencing decision. Performance standards for the mitigation function Wiggins and the revised ABA Guidelines affirmed what capital defense attorneys had long understood: A mitigation specialist is an indispensable member of any capital defense team. However, the underlying concept of mitigation and its constitutional and practical role in the sentencing process are much less well-defined. Case law has cemented the central role of the life history investigation in the development of a mitigation case, but the skills and abilities that are essential for the constitutional implementation of the mitigation function on capital defense teams have only recently been standardized. Because the ABA Guidelines have provided valuable guidance on the qualifications and performance of counsel (Rompilla v. Beard, 2005; Wiggins v. Smith, 2003), the capital defense community identified an equally important need for similar standards describing the skills and functions of mitigation specialists. A thorough mitigation investigation is essential to the preparation of any capital case, but the unfortunate reality, just as with defense attorneys, is that the demand for trained and qualified mitigation specialists exceeds the supply (O’Brien, 2008). The Supplemental Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, published in the Spring 2008 issue of Hofstra Law Review, reflected the national consensus on standards of performance for the mitigation function. Based on years of interviews with experienced mitigation specialists, capital defense attorneys, and other death penalty defense experts, these Supplemental Guidelines have been added to the prior ABA Guidelines published in 2003. During the course of investigation that resulted in the publication of these Supplemental Guidelines, critical professional obligations were noted. 1. Performance standards regarding the mitigation function must only accentuate the right of a capital defendant “to the guiding hand of counsel at every step in the proceedings against [them].” (Powell v. Alabama, 1932, as cited in O’Brien, 2008, p. 703)

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2. Although focused only on the mitigation function, the theory of the case—from guilt into penalty—must always be interwoven. Neither the ABA Guidelines nor these Supplemental Guidelines offer support for a separate mitigation team or inquiry. Indeed, both sets of Guidelines consistently state that “all members of the defense team perform in accordance with prevailing national norms when representing a client who may be facing execution.” (Supplemental Guidelines, note 1, at Introduction) 3. Despite the lack of available qualified mitigation specialists, the profession of mitigation is a unique and highly specialized set of skills that can not merely be substituted by other ancillary consulting professions. Guilt phase investigators do not possess the necessary abilities to effectively develop a client’s life history. Mental health experts, although frequently used as consultants on the capital defense team, are also not the best suited to fulfill the mitigation function. In order to understand the standards governing the mitigation function, one must first understand the broader context in which it has been defined. Mitigating evidence neither justifies nor completely excuses an offense, but is evidence that “in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability” (Black’s Law Dictionary, 1990). This language has been reiterated or reflected in many statutory schemes. Judicial opinions have noted this definition since the first edition of Black’s (People v. Fook, 1928). Indeed, even the broad definition of mitigation by this authoritative legal text has evolved. The 1999 edition of Black’s Law Dictionary elucidated mitigation as “a fact or situation that does not justify or excuse a wrongful act or offense but that reduces the degree of culpability and thus may reduce . . . the punishment in a criminal case.” The importance of multidimensional, exhaustive investigation is emphasized, as well as the need to conduct frequent, in-person interviews with the client and relevant witnesses. The methods of presenting documentary evidence are determined on an individual-case basis, in consultation with counsel, considering jurisdictional practices and discovery rules. These methodologies include genealogies, social history reports, chronologies, and other types of demonstrative evidence such as photographs, videotapes, and physical objects to portray events in the client’s life. Regardless of the specific task descriptions, the standard of care in capital cases requires that an in-depth investigation by a properly trained mitigation specialist be conducted to determine the range of mitigating evidence that exists in a capital defendant’s life. This investigation is aimed at placing the capital offense within the broader context of the defendant’s life, which is illuminated through

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the presentation of documentary evidence, lay witness anecdotal information, and expert opinion. Mitigation investigation centers on developing an accurate and reliable social history that will be the cornerstone of the penalty phase presentation and the foundation of additional expert evaluation. Experts, in turn, will rely on the information developed by the mitigation specialist in reaching their opinions about the defendant’s behavior and functioning. The social-history investigation should begin immediately upon defense counsel’s appointment. The involvement of a mitigation specialist from the inception of the case is critical for several reasons. Assessment and identification of mental and emotional impairments will inform counsel’s decisions about relevant psycholegal issues to be raised at the earlier stages of proceedings, such as competency to waive rights, competency to stand trial, voluntariness and accuracy of statements made to law enforcement or other fact witnesses, mental state at the time of the offense (e.g., insanity), and any bars to execution such as mental retardation. Many death penalty statutes have formalized procedures for presenting mitigating evidence to the prosecution or authorizing authority early in the process to prevent the case from proceeding as a capital case (Guideline 10.9.1). The early involvement of the mitigation specialist in conducting the social history investigation may provide attorneys with information and support to forego seeking the death penalty. The results of the investigation may also be used in seeking a negotiated settlement, or plea agreement, of the case prior to trial. The Supplemental Guidelines discussed the core skill sets of the mitigation specialist as including overcoming barriers, building rapport, interviewing, mental health screening, cultural competence, and communication (O’Brien, 2008). The ability to identify and overcome barriers to disclosure of potentially life-saving information is at the heart of the mitigation function, as exemplified in the Rompilla case when the client and family members were finally able to disclose, in post-conviction, the abuse and other developmental insults suffered by the defendant in childhood. When considering the issue of which academic or professional degrees were best suited for mitigation work, the Supplemental Guidelines “focus more on performance than pedigree” (O’Brien, p. 741). Over the years, the mitigation profession has included professionals from a wide array of backgrounds and education. Indeed, the skill of rapport building may be equally fulfilled by formal training or an individual professional’s personality characteristics. Sequence of mitigation investigation Aggressive and meticulous investigation can be vital in a decision not to seek death or to charge a lesser offense. Defense effort in the initial weeks of a capital case may demonstrate how complex and time-consuming the case will be if it is

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pursued as a death penalty proceeding. Solid early defense work may reveal issues and factors that would have the likely result of a jury reluctant to impose death. Plea negotiations with the prosecution are ongoing in capital litigation. As new information is developed about mitigation, it may be presented to the prosecution as grounds not to seek death. Mental retardation, severe psychiatric illness, successful adjustment to the structure of incarceration, and brain damage are powerful arguments that negotiated settlement is a better course than the expense and time of a trial that could result in a jury’s being unwilling to impose a death sentence. Social-history investigation will uncover patterns of behavior that are transmitted from one generation to the next and help in defining the family dynamics. Family patterns are influenced by culture, community services and community attitudes, economic status, race, religion, and education, among others. These behavioral patterns find expression in family values, child-rearing practices, and beliefs about what the role of a family is and should be. These patterns contribute to abandonment, neglect, physical violence, and sexual abuse—all of which are possible themes to be presented in mitigation. Upon entry into a capital case, the initial mitigation assessment will include the following broad categories of activities: 1. Review of documents related to the defendant and the crimes for which the defendant is charged 2. Multiple interviews with the client 3. Interviews of witnesses relevant to the defendant’s behavior and mental state in the months prior to and the days surrounding the offenses for which he is charged 4. Review of voluminous discovery documents 5. Collection of documents 6. Preparation for and interviews of familial and community-based mitigation witnesses Collection and analysis of life history records Life history records play a vital role in developing mitigation and the biopsychosocial history. Records are the basis for accurate and reliable expert opinions. To maintain a standard of care, social historians and mental health experts must rely on collateral evidence, not just on the information provided by the defendant and witnesses. Records will also reveal patterns of family dynamics and provide information on additional witnesses who can provide further documentation of any mental, medical, or social impairments.

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As noted in the ABA Guidelines, Guideline 10.7—Investigation: Records—from courts, government agencies, the military, employers, etc.— can contain a wealth of mitigating evidence, documenting or providing clues to childhood abuse, retardation, brain damage, and/or mental illness, and corroborating witnesses’ recollections. Records should be requested concerning not only the client, but also his parents, grandparents, siblings, and children. A multi-generational investigation frequently discloses significant patterns of family and community dysfunction and may help establish or strengthen a diagnosis or underscore the hereditary nature of a particular impairment. Corroborating information from multiple sources—a time consuming task at the heart of mitigation investigation—is important wherever possible to ensure the reliability and thus the persuasiveness of the evidence. The following records on the defendant and his family must be collected and analyzed: 1. All school records, including records related to transcripts, health reports, standardized testing, attendance, special education testing and/ or classes, disciplinary action for every school attended, including adult education and vocational schools, GED, Job Corps, etc. 2. Employment records including job applications, attendance, assignments and performance evaluations, medical and psychological evaluations, relocations, pay records, Social Security tax documentation 3. Family and individual social service records including records of food stamps, AFDC, WIC, welfare, counseling, referrals, medical and mental health treatment, records associated with adoption agencies and foster homes, including placement and discharge summaries, progress notes, and medical, educational, mental health, and intelligence evaluations 4. Medical records including private physicians, clinics, and hospitals 5. Juvenile criminal justice records including files from former defense attorneys, pre-trial intervention, community service records, juvenile detention records, and all related medical, educational, and psychological evaluations, treatment plans, field and progress notes, referrals, and court files 6. Adult criminal records including police, sheriff, and federal law enforcement records, jail and prison records, psychological, educational, and medical evaluations, daily progress notes, disciplinary reports, work assignment records, classification reports, records of participation in all vocational, educational, religious, and honor programs, religious

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reports and visitation logs, all court documents, all public defender and prosecution files 7. Probation and parole records including pre-sentence investigation and sentencing reports, field notes, family and social history information, conditions of supervision and violation, pre-release investigation summaries, court-mandated treatment, and conditions of release from supervision 8. Psychological and psychiatric records including community mental health clinics, private doctors and counselors, hospitals and substance abuse facilities, to include intake evaluations, treatment interventions, medication logs, physician and nurse progress notes, referrals, and discharge reports 9. All applicable birth, death, and marriage certificates, records, and related investigations (Holdman, S. Declaration of Scharlette Holdman, pp. 10–11) http://www.capdefnet.org/pdf_library/temp/Seminars/12-02/ continuance_mitigation_specialist_role.pdf Document-gathering for the social history in a capital case is a very resourceintensive task because of the time it takes to obtain some records and contacts with relevant collateral sources. Government agencies such as the Social Security Administration, Internal Revenue Service, and U.S. Armed Services that routinely maintain critical life history documents take months to comply with many different types of requests for records. Relevant judicial records, such as those relating to social service intervention, divorce, and civil commitments for psychiatric treatment during the defendant’s early years, are usually not computer-indexed and require time-consuming manual searches in diverse jurisdictions in and out of state. It is frequently difficult to identify and locate family members and others who can serve as accurate sources of information about dates and locations of the family’s movements—making record collection the primary means of constructing an accurate chronology of the defendant’s life. As the investigation progresses, the mitigation specialist will identify specific tasks and other areas of inquiry that were stimulated by data identified in the above-noted document collection activities. Witness interviews Perhaps the most important skill provided by the mitigation function is the ability to interview effectively about social and mental health concerns. The Supplemental Guidelines recognize that: [m]itigation specialists must be able to identify, locate and interview relevant persons in a culturally competent manner that produces confidential, relevant and reliable information. They must be skilled interviewers who

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can recognize and elicit information about mental health signs and symptoms, both prodromal and acute, that may manifest over the client’s lifetime. (note 1, at Guideline 5.1(C)) Interviews of potential lay witnesses are time-intensive but the best means through which the story of the defendant’s life is elicited, and perhaps the most important single source of diagnostic data for mental health experts. Information must be obtained in a complete and unbiased fashion and then organized and related to a larger fund of information about the defendant’s life. As required by the ABA Guidelines, one member of the defense team must be “qualified by training and experience to screen individuals for the presence of mental or psychological disorders or impairments” (Guideline 4.1(A)(2)). This requirement was expanded and specified in the Supplemental Guidelines’ discussion of the need for the mitigation function to recognize subtle verbal and nonverbal signs of mental impairment, while maintaining the rapport that is necessary for effective representation. The Supplemental Guidelines demand that mitigation specialists understand and empathize with a client’s cultural influences. This requirement echoes other professional standards articulating a practice norm of cultural competency, promulgated by organizations in the fields of social work, education, medicine, and the law. The capital defense team must account for culture in investigating, documenting, and presenting the client’s social history. The next stage of mitigation investigation includes identifying, locating, and interviewing witnesses for the penalty phase. As with document collection, witness interviews are time-consuming and must be undertaken in light of the developing mitigation assessment. 1. Identification of family members and other potential mitigation witnesses: Through the review and analysis of life history records as they are received, and contact with the defendant, the mitigation assessment will transition into the identification and location of appropriate witnesses to be interviewed. These individuals include family members, social workers, teachers, coaches, school psychologists, counselors, probation officers, ministers, principals or other related educational and social services personnel, peers, physicians, mental health professionals, law enforcement officials, and neighbors. 2. Client contact and interviews: The single most important person with whom to maintain contact, conduct interviews and make observations is the client. A regular

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visitation/interview schedule should be established to integrate the information being developed and learned from witnesses and from documentation with information being developed and learned from the client. As an ongoing, evolutionary process, this best takes places by repeated visits over time on a continuing basis. Ongoing review of case information and consultation with legal counsel As information is gathered, developed, and analyzed, regular consultation with counsel and other members of the defense team will provide the necessary interaction to fully develop viable avenues of mitigation and defense. Discovery and evidence related to aggravating factors must be reviewed in light of the developing mitigation assessment. The investigation requisite is to refute, dispel, or mitigate specific aggravating evidence produced in discovery. As the documents are reviewed, preparation of a detailed cast of characters will allow the team to identify all persons who need to be investigated. This cast of characters, furthermore, has information on the last known whereabouts of each person, contacts for people at institutions and facilities connected with the case or defendant, as well as other records to be obtained and people to interview. In addition, as the documents are reviewed, information pertinent to the defendant’s life history is captured in a detailed social history, which will be used by experts and provides a chronology of potential mitigation facts. The mitigation investigation will continue to incorporate the information from newly received documents into the social history chronology and the growing cast of characters, and identify additional records that need to be obtained. As reflected in the Supplementary Guidelines, preparation of the biopsychosocial history and chronology is an effective means to organize and communicate the client’s background and character. The information developed from interviewing witnesses and collecting significant records will be reviewed and analyzed to prepare the defendant’s life history for use throughout the case, in preparing a life history presentation to the jury, and for use by appropriate mental health experts in making their assessments. Development of demonstrative evidence Photographs, charts, videotapes, genograms, or chronologies can be used to assist in the presentation of the mitigation case. Family photographs collected through the life of the defendant may help illustrate the testimony of witnesses. Use of charts or diagrams may help the jury understand the relationships of the many members of the defendant’s family, the different places the defendant lived during his childhood, or other relevant facts.

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The most prevalent way of summarizing the data is in a chronology. It provides a historical account of events that may have significance in the family’s life. A timeline or chronology also allows defense team members to see trends, abrupt changes (e.g., in school performance, behavior, and living situations), and reactions to these changes. Chronologies can also pinpoint periods in the life history about which little is known, so that further investigation can be pursued. Genograms are annotated family trees that highlight patterns of impairments in family relationships and supplement the information contained in the chronology of the defendant’s social history. They denote victims and perpetrators of sexual and physical abuse, divorces and marriages, births and deaths, and prevalence of mental impairments such as substance abuse, mental illness, and neurological disease. A genogram is also useful in charting the long-term effects of various influences on the defendant. These visual depictions of documentary evidence are critical tools of the mitigation investigation, and they can be used to present evidence for the jury to consider in making the penalty decision. However, the client’s life story must first be analyzed and understood before the defense team selects relevant mitigation themes.

Summary

This chapter provides an annotated review of the extant standards for practice in the field of mitigation. It reviews the different roles and duties of the members of the defense team and the need for practitioners in the field of mitigation to develop competencies in the investigation of the background and life history of the capital defendant. The translation of these broad challenges that mitigation professionals encounter in the development and implementation of these standards is the primary focus of the remaining chapters of the book. This chapter reviews the experiences of professionals in the field who have helped clarify the national standards for practice in death penalty cases. Because the death penalty is such a different type of punishment from other sentences, lawyers and non-lawyers involved in the process have to become very efficient in summarizing and integrating a broad array of evidence about the defendant’s background, character, and criminal record. In the next chapter, we focus on identifying well-known principles in the legal and philosophical literature for analyzing issues of background and character that are fundamental predicates for considering these important concerns in examining the appropriateness of a death sentence.

4

Assessing Culpability: The Role of Background and Character

jurors confront the difficult task of determining whether an offender deserves a sentence of death rather than life imprisonment. Current death penalty jurisprudence assumes that the death penalty should be reserved for the most heinous crimes and the most culpable offenders. However, there is no compelling evidence that jurors can reliably make these distinctions in taking life-anddeath decisions (Haney, Sontag, & Costanzo, 1994; Sontag, 1990; Tiersma, 1999). Nonetheless, mitigation practitioners are expected to provide jurors with information about an offender’s background, history, and character to aid members of the jury in taking their life-and-death decisions. Many human frailties are due to experiential factors that place important constraints on a person’s life choices and life chances. Their access to resources, types of culture, and ways of life involve experiences outside their personal control that nevertheless shape their development. During these formative years, they have no control over who their parents are, where their parents live, their social class, their race, or their gender. Each of these variables has differential effects on their access to key resources involved in shaping their temperament, desires, beliefs, and other factors influencing the course of their lives (Ashford & LeCroy, 2013; Tepperman & Wilson, 1996). Factors like the neighborhood in which people live can affect their opportunities for peers, schools, and other social institutions related to risk factors that are associated with the development of many negative 51

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outcomes, including mental and emotional impairments, delinquency, and crime. These background factors involve important issues of “moral luck” that are critical for jurors to assess in determining whether the defendant deserves a sentence of life or death. Yet most lawyers, social scientists, and mitigation specialists have a difficult time linking relevant background experiences to legal theories of culpability and character that can mitigate either the offender’s moral culpability or the offender’s deserved punishment. The purpose of this chapter is to examine legal and philosophical concepts of culpability and character that can help give effect to the presentation of personally mitigating factors. Although a socially rotten background or other adverse early childhood experiences might not excuse a defendant from their criminal responsibility, these factors should be considered in the selection of an appropriate punishment for a crime of homicide. However, issues of culpability and guilt surrounding crimes of murder are often conflated with issues of culpability associated with the penalty phase of a capital case (Crocker, 1997; Huigens, 2000; Linton, 2005). This conflation of these distinct forms of culpability is confusing to most jurors and mitigation professionals. Prosecutors are also quite adept at discounting the effects of remote forms of early life experiences on mitigation of punishment by interpenetrating guilt-phase issues of culpability with issues of deserved punishment. For this reason, we will provide a brief review of existing concepts of culpability that can aid mitigation professionals in challenging distorted conceptions of background and character in assessing the moral blameworthiness of a capital defendant.

Responsibility and Culpability Assessments

People often inaccurately question in the penalty phase of a capital case the significance of childhood experiences that do not appear to have a close connection with the commission of the actual crime. Jurors also can have difficulties with the fair implementation of guided discretionary schemas that focus extensively on the crime without clarifying how the life experiences of the criminal are relevant to the mitigation of punishment. The upshot is that jurors often do not give appropriate weight to factors not directly related to the crime. A study of 41 former jurors who participated in death penalty cases in South Carolina showed that these jurors had a moral compass for evaluating issues of diminished individual responsibility and other mitigating concerns surrounding the criminal offense (Garvey, 1998). However, this compass gave less weight to issues of moral culpability involving adverse life experiences that were independent of the defendant’s criminal responsibility for the crime (Garvey, 1998). For this reason, mitigation

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professionals confront the important challenge of differentiating between the moral significance of proximal and remote experiences in assessing issues of moral desert in capital sentencing processes. Proximal culpability in penalty-phase deliberations involves any impairment in the defendant’s capacities with some nexus to the defendant’s capacity for (a) appreciating the wrongfulness or consequences of their behavior, and (b) their capacity for controlling their behavioral responses (Garvey, 1998). This type of culpability is very close to the culpability addressed in guilt-phase inquiries in the criminal process, but this form of culpability does not address issues involving mitigating experiences that lack a close connection with the actual commitment of the crime. In our view, there is much less confusion among mitigation professionals about investigating the proximal mitigation of the defendant’s culpability than there is about identifying appropriate vehicles for giving effect to personally mitigating factors involving remote life experiences. Remote mitigation involves factors that are not directly related to the crime. They include factors like a history of severe abuse or other adverse circumstances that are part of the offender’s life history, but lack a clear nexus with the mental state components of the crime. Most of these factors help to shape the criminal’s life choices, and life chances. For instance, persons raised in deprived environments are not typically excused from their behavior, but their life circumstances are a relevant moral consideration in selecting an appropriate punishment in response to the person’s character and capacity for moral agency. The focus in guilt-phase inquiries is about culpable acts, not culpable persons. In penalty-phase inquires, the culpability of the person can arise as a relevant sentencing factor. Indeed the focus shifts in penalty-phase inquiries from strictly examining the circumstances of the crime to examining the person and whether the person deserves a sentence of life or death. A number of legal commentators have identified analytical distinctions in the legal literature between guilt-phase and penalty-phase culpability that are important for mitigation professionals to understand (Crocker, 1997; Huigens, 2000; Sendor, 1996). In what follows, we will unpack the key assumptions underlying each of these distinctions and provide an overview of the nexus between issues of culpability in penalty-phase deliberations that include assessments of the defendant’s moral agency and character. This component of the sentencing process can be a slippery slope because it shifts attention from concerns in retributive approaches of punishment from punishing the defendant for the offense that the defendant committed to punishing the offender for his or her character (Roberts, 2008). This issue also will be examined in Chapter 7 with a different focus and emphasis.

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Differentiating Mitigation of Guilt from Mitigation of Punishment

In the guilt phase of a capital case, it is important for society to determine whether the person has the general capacity to answer for his or her alleged criminal behavior. Does the defendant have the general capacity for normative competence? Normative competence refers here to the capacity for both understanding, and being able to conform oneself to, the requirements of the law (Morse, 2000). If a defendant lacks the general capacity of rationality, or rational self-control, then he or she would lack the status of being a responsible agent. Tadros wrote, We might ask who counts as a responsible agent as far as the criminal law is concerned. This is a question of status. For example, children below a certain age do not have the status of being responsible agents, and that exempts them from criminal responsibility without any investigation into whether they have fulfilled the conditions of a criminal offense. Let us call this “status responsibility.” (2007, p. 2) This quotation addresses two of the issues in guilt-phase inquiries that can be confused by jurors and mitigation professionals: (1) The stringent legal requirements associated with status responsibility determinations (insanity) that negate the need for guilt and punishment (2) The defendant’s mental state culpability (evil mind) that defines the severity of criminal behavior (mens rea assessments) The first issue involves the status question of whether a person has the cognitive or volitional capacity for being responsible for a crime of homicide. Should we excuse an individual of responsibility for a crime of homicide because they lack the general capacity for being fairly punished as moral agents for their behavior? The second issue involves an assessment of whether the defendant met the mental state and other legal requirements that define their alleged crime. The anatomy of any crime consists of an actus reus (evil act), mens rea (evil mind), and causation (Gardner & Singer, 2001). Any non-strict liability crime (like homicide) has to meet each of these required elements. Many individuals kill people who are status responsible (because they possess the general cognitive or volitional capacities), but are not culpable because their mental state for fulfilling a specific element of a crime was not fulfilled or the person had a defense against attributions of moral guilt (e.g., duress or self-defense). Moral guilt dates back to ecclesiastical times as a key element in the definition of crimes. Bracton (ca. 1250–1256) contended in The Laws and Customs of England

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that the person’s will and intention are central in determining whether harmful behavior should be treated as crimes. This focus on intentional choice is specific to issues of guilt. For quite some time in the history of Anglo-American law, the threshold for sanity or general responsibility issues focused primarily on choices that are intentional, rational, and non-coerced (Pillsbury, 1992). As a consequence, few persons were found insane, given the high legal threshold that was established for determining practical reasoning capacities (tests of insanity) in current criminal jurisprudence (Morse, 2000). Mitigation professionals are also expected to assess how a defendant’s background, character, and history affect their capacity for practical reasoning, but in mitigation practice the professional is responsible for identifying diminished levels of practical rationality and not the defendant’s capacity for practical rationality. For this reason, mitigation professionals need to have some sense of what practical rationality means in criminal law. Litton wrote (2005, p. 1051): [The law] provides rules for our behavior and threatens us with varying degrees of punishment for violating those rules. By doing so, the law assumes persons are capable of taking a rule and its threat of punishment as a reason not to engage in proscribed forms of conduct. If we generally did not have the capacity to consider the reasons provided by law, then it would be useless. Indeed, we excuse the insane, not because their behavior is causally determined, but because they are irrational, incapable of recognizing and assessing reasons and making choices in light of their assessment. For the above reasons, mitigation professionals should adhere to scientifically grounded formulations for guiding the development of mitigation themes that are supported by facts gathered in a systematic assessment of threats to a person’s capacity for practical rationality. In Chapter 6, we will provide a review of extant research on social information processing (SIP) concepts and theories of self-control that can aid mitigation professionals in assessing the role of experience and background in issues of practical rationality and other forms of proximal mitigation. As is true of assessments of status responsibility, legal tests of the negation of mens rea for specific crimes are also quite high. Morse (1995) has pointed out that it is very difficult for a defendant to succeed in negating their mens rea. “Mental disorders may give people crazy reasons for doing what they do, but it virtually never negates the defendant’s intention, knowledge, conscious awareness of risk, or other required mental states” (Morse, 1995, p. 5). For this and other reasons, it is not surprising that juries have a difficult time shifting from bright-line determinations of sanity (mens rea) in guilt-phase determinations to issues of diminished culpability in the penalty

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phase of a capital case. Namely, a person may have the necessary mens rea for determining guilt, but their punishment ought to be lessened in the selection of appropriate punishments, given their diminished responsibility and moral culpability. Pillsbury (1998) is critical of current mental-state approaches to culpability established in the Model Penal Code. He believes that issues of premeditation and other mental-state assessments of culpability do not differentiate among reasons or motives for behaviors that ought to have increased salience in assessing issues of culpability. Although a person may premeditate a “mercy” killing, this type of distinction in culpability is not differentiated from types of culpability associated with a planned killing for the repulsive reason of obtaining insurance money (Pillsbury, 1998). Both of these crimes are premeditated, but killing for reasons of mercy is not as blameworthy as killing for personal gain. Pillsbury contends that this important moral distinction between killings is ignored when the focus in culpability assessment is strictly on whether intent is present or whether planning is involved. In Pillsbury’s view, the central issue is not whether the deprived background of the defendant caused their behavior, but whether it influenced their practical rationality or influenced the fairness and difficulty of their choice. In making these assessments, he argues for adopting an analysis of reasons rather than a causal analysis of culpability. In a reason analysis, assessments of culpability shift, from determining whether diminished capacities determined or caused the person’s behavior, to examining the offender’s motive for his or her criminal behavior. Although current criminal jurisprudence assumes that issues of motive and character are not relevant in the guilt phase of capital cases, issues of motive and character are relevant in selecting the appropriate punishment. Information about the motive can help members of the jury in isolating the reasons why the offender committed the murder and whether the reasons were heinous or depraved. When the motives of the offender appear to be motivated by very “evil” or “purely evil” reasons, then their criminal behavior is considered more serious than the behaviors of offenders in murders that are due to human motivating factors involving issues of passion, fear, or other types of human weakness. However, issues of weakness, misfortune, or other hardships can also be viewed as aggravating the seriousness of the offense or the culpability of the offender. For this reason, we will examine in Chapter 7 and Chapter 8 knowledge from social psychology and criminology that can help practitioners in differentiating ordinary (i.e., involving common human frailties) from depraved forms of culpability.

Conflating Responsibility and Culpability Issues

One of the most difficult tasks mitigation professionals face in the framing of inquiries about relevant mitigation is addressing the words used to describe the

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issues involved in penalty-phase inquiries that have more than one meaning (Huigens, 2000). For instance, words like responsibility and culpability are often used interchangeably. This specific problem is exacerbated by the equally confusing instructions about mitigation provided by judges for jurors as a guide to the inquiry process in the penalty phase of a capital case. In framing the issues, juries are often instructed to remember “that evidence of the presence of mitigating factors is not offered to justify or excuse the defendant’s conduct. Rather, it is intended to present extenuating facts about the defendant’s life or character or the circumstances surrounding the murder that would justify a sentence less than death” (State v. Feaster, 1998, p. 438). However, research has shown that similar kinds of complex instructions to a jury have been poorly comprehended by many jurors (Lieberman & Sales, 1999). Jurors have no background on laws of justification and excuse or on other concepts like extenuating and mitigating circumstances (Tiersma, 1995). For this reason, mitigation professionals need to understand that they must frame the discussion of these concepts in ways that help jurors understand the significance of the information that they are provided about an offender’s culpability in the penalty phase of a capital case. In order to do so, mitigation professionals cannot ignore the potential for the misinterpretation of relevant mitigation concepts by members of the jury. The concept of extenuating circumstances can legally refer to the lessening of the seriousness of an offense by means of a partial excuse (Litton, 2005). In view of this legal interpretation of the meaning of the term extenuation, it is not surprising that jurors can be confused when they are instructed by the court to not consider mitigation facts as an attempt at excusing a person’s behavior. If one adopts a partial excuse, the mitigation practitioner is in effect attempting to partially excuse the defendant’s moral culpability, and many states have adopted partial excuses that would not constitute a defense in guilt-phase determinations as statutory forms of mitigation. This form of mitigation is directly related to the crime and is consistent with the court’s view that even though an individual has the capacity to know right from wrong, their diminished capacities can still reduce their culpability in the penalty phase of a capital case. In Atkins v. Virginia (2002), the Supreme Court described how offenders’ capacities can be diminished by mental retardation without exempting the offender from guilt or punishment. The Court wrote that persons with mental retardation: have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experiences,

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to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability. (Atkins v. Virginia, 2002, p. 318) In essence, Atkins’s rational capacities were not diminished enough to negate his responsibility for his crime or to lessen the severity of the crime for which he was convicted, but his mental retardation did diminish his culpability in ways relevant to selecting an appropriate punishment. These fine legal distinctions between guilt and penalty-phase culpability are often misunderstood by jurors in the penalty phase when arguments about diminished capacity were not introduced with due diligence in the guilt phase of the trial process. Themes of diminished responsibility and culpability should be introduced very early and often in the trial process, which is referred to in the mitigation literature as “front-loading” the mitigation evidence (White, 2006). Defense counsel is expected to start introducing mitigation in the voir dire, the opening statement, and at any other appropriate juncture during the guilt phase of the trial in aggravated cases (White, 2006). By doing so, it is hoped that jurors are in a better position to see the significance of evidence of diminished capacities and their implications for assessing the offender’s culpability in the penalty phase of the trail process. Persons with less culpability due to diminished capacities deserve different punishments from persons who have full capacity to understand and control their behavior. Moreover, research shows that notions of diminished capacity are part of the moral compass of lay jurors (Garvey, 1998). In essence, there are important distinctions in the legal literature about challenging the fit between the level of culpability and the severity of the crime, as well as challenging the appropriateness of a punishment based on the levels of culpability associated with the commission of the crime that are important foundations for the practice of mitigation.

Diminished Responsibility and Issues of Diminished Culpability

Diminished-capacity defenses are not a component of the guilt phase in most jurisdictions of the United States, but the issue of diminished culpability is widely

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recognized as an important consideration in sentencing matters (Morse, 2003). Defendants often have sufficient capacity for general rationality, and this capacity bars them from being excused from criminal responsibility. In this circumstance, defendants do not meet the legal tests for being considered “without sufficient rationality” (insane), but their capacity for being guided by good and normal reasons can be diminished because the defendant’s intentions and desires were corrupted by exposure to extremely adverse developmental circumstances (Sendor, 1996). Indeed, the exercise of individual responsibility can be undermined when an individual is raised in an environment that unfairly makes it harder for him or her to adhere to the law even though the individual has the general capacity for criminal responsibility. Up until quite recently, eminent criminal and mental health law scholar Stephen Morse (2003) argued against the adoption of a partial responsibility doctrine in guilt-phase determinations on both practical and moral grounds, but he has revised his opinion on this matter. He is now arguing for the adoption of a general partial responsibility defense in guilt-phase determinations. For Morse, the current bright-line tests of insanity, mens rea, duress, and provocation ignore the fact that these are continuum concepts with implications for assessments of culpability in the guilt phase of the criminal process. He wrote, “Theoretical reflection and practical experience have led me also to believe, however, that a generic partial responsibility excuse is a moral imperative for a just criminal law that attempts to never punish defendants more than they deserve” (Morse, 2003, p. 289). Partial or diminished responsibility is an important moral consideration. It involves assessments of degrees of individual responsibility with corresponding links to issues of diminished culpability. Although people can be responsible in a legal sense (status responsible), it does not mean that their moral culpability is not diminished. This form of diminished culpability is addressed in many statutory definitions of mitigation, but it is unclear whether lay jurors can shift from brightline tests governing guilt-phase determinations to recognition of responsibility as a continuum concept in the penalty phase of a capital case. In fact, studies have shown that jurors often think that they need to sentence the offender to death following a determination of guilt in the guilt phase of the court process (Barron, 2002). The close link between issues of guilt and punishment are fundamental principles underlying many folk or common-sense conceptions of proportionality that can bias jurors from considering claims of diminished culpability during the penalty phase of capital cases. The Supreme Court of the United States assumes that the previous issue is not necessarily a problem, because the guilt and penalty phases of the process involve different forms of inquiry. The focus of inquiry during the guilt phase should be

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on legal definitions of culpability, and the focus in the penalty phase should be on issues of moral culpability. Crocker (1997) has argued, however, that this bifurcated decision process is confusing because the issue of culpability is being used for two distinct determinations. “Using the term culpability to describe the fulcrum on which two distinct inquires turn is not only confusing, but more importantly, it is inaccurate” (Crocker, 1997, p. 25). For this reason, she recommends shifting the focus of the penalty inquiry from an issue of moral culpability to an issue of deathworthiness. The focus of inquiry in the penalty phase also can be seen as an examination of why the crime was committed. Litton (2005, p. 1033) wrote that the ABA Guidelines indicate “that a mitigation presentation [is often] offered not to justify or excuse the crime but to help explain it.” This statement confronts an important practical issue encountered by mitigation professionals. How should practitioners introduce explanations of the crime without challenging the legal system’s fundamental discourse about moral culpability and punishment? Do jurors understand the links between partial excuses involving exposure to adverse experiences and themes of reduced moral culpability?

Partial excuses and confusion about issues of responsibility and culpability Excuses involve a person’ admitting that his or her act is wrong, as well as unjustified, but that his behavior meets certain conditions that eliminate or reduce their moral blameworthiness. Most legal commentators subscribe to legal theories of capacity, choice, and character in examining these conditions of excuse (Tadros, 2007). Capacity and choice theories of responsibility can involve bright-line tests, as well as partial excuses. For this reason, capacity and choice are concepts that are highly compatible with efforts to treat culpability as a continuum concept in both guilt- and penalty-phase deliberations. Character theories, on the other hand, are less widely accepted for assessing issues of status responsibility, but are recognized widely as relevant considerations in penalty-phase inquires. The focus in the media and in legal commentaries on defenses of victimization as “an abuse excuse” has complicated many of the strategies employed by mitigation specialists in assessing the offender’s degree of culpability. For instance, Vuoso (1987) has argued in the legal literature against causal theories of excuse involving background experiences. In addition, he is not in favor of “the notion that an adverse early social background is a factor that can mitigate one’s moral and criminal responsibility for one’s latter actions …” (Vuoso, 1987, p. 1662). Similar views have been raised about the role of causality in making moral judgments about criminal behavior, because some social critics believe that the abuse

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excuse would pose a major threat to the moral underpinnings of our legal system (see Wilson, 1997). Abuse excuses are deemed major threats to our legal principles primarily because it is believed that they can serve as a tactic for evading moral responsibility (Dershowitz, 1994). While there are a number of critiques in the literature on the use of abusive experiences as excuses, this does not mean that the courts have not considered abuse as mitigation in the penalty phase of a capital case. The courts have recognized that remote forms of abuse do not absolve a person of criminal responsibility, but can mitigate the punishment or the defendant’s degree of moral culpability. In fact, a history of abuse is a common theme of mitigation in the penalty phase of capital cases that ought to be considered by fact finders in making life or death determinations. This important point was affirmed in the case of Eddings v. Oklahoma (1982). In this case, the trial court had not given any consideration to the defendant’s history of abuse by members of his family. Eddings’ probation officer testified at the sentencing hearing that Eddings was raised without proper supervision. The trial court also learned in the sentencing hearing that Eddings’s mother was an alcoholic and a prostitute. Eddings’s mother raised him without rules and supervision until he was 14 years of age. At 14, he went to live with his father, who had divorced his mother when Eddings was five years old. Eddings father used severe physical violence to punish Eddings while the boy was under his care. The Supreme Court of the United States remanded this case back to the state court for further proceedings because it concluded that the trial judge committed an error in assuming that under law the judge was not able to consider Eddings’s violent background or disturbed family history as mitigation. Dershowitz (1994) who has criticized the use of the abuse excuse was concerned primarily about circumstances in which attempts are made to fit the excuse to issues of self-defense, provocation, or insanity in guilt-phase determinations. However, he did not believe that the abuse excuse and other claims of adverse circumstances were inappropriate forms of mitigation. His concerns were directed instead at the marked increase in legal defenses contending that the history of abuse caused the murder and thereby excused the defendant. He contends that the assessment of responsibility in the guilt phase should not be based on syndrome causality. Dershowitz, like many other legal commentators, has rejected the use of a deprived background or other “sob stories” as an excuse from criminal responsibility. He wrote, A mitigating factor does not constitute a legal defense, though it may reduce the degree of legal (and moral) responsibility. A defendant who is provoked into killing may have the charges reduced from murder to manslaughter or may have his sentence reduced, but not excused.

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These distinctions are not always susceptible to neat categorization. Insanity, which sounds like a mitigating factor, may be a complete legal excuse. A mistake about self-defense may sound like an excuse, but if the mistake is a “reasonable” one, the law treats it as a justification. (If it is an unreasonable mistake, it may be mitigation.) (Dershowitz, 1994, p. 10) Clearly, the concerns raised by Dershowitz and other legal commentators illustrate that mitigation professionals confront a difficult task in framing themes of mitigation because jurors might conflate issues of exempting the offender from responsibility with the need to reduce the offender’s punishment because of evidence of mitigated culpability. Causal theories involving adverse experiences are especially vulnerable because they can trigger unreceptive responses from jurors when they are employed solely in the penalty phase of a capital case. Some jurors interpret actions of this nature as a roundabout way of excusing the defendant from responsibility (Westervelt, 1998). For this reason, current recommendations in the field of mitigation call for practitioners to establish close links between the defense strategy in the guilt phase and the themes described in the penalty phase, but the success of this type of strategy is contingent upon whether the mitigation team can clarify for the jury that the aim is not to exempt the defendant from criminal responsibility, but to help identify the appropriate punishment for the defendant’s specific level of responsibility and moral culpability. Nonetheless, many legal commentators have raised substantial concerns about the use of causal explanations as excuses, including critics of capacity and character theories of criminal liability. For instance, Pillsbury wrote, “Physical causation of behavior aids our understanding of that behavior, and is critical to devising methods of changing it, but by itself causation says nothing about blameworthiness” (1998, p. 22). Pillsbury is a vigorous advocate for processes in culpability determinations that focus on motive analysis and not on issues of genetic and environmental causation. In his view, all forms of human behavior are caused by genetic and environmental factors. For this and other reasons, he does not assume that environmental causes should be considered relevant conditions for making important moral distinctions about culpable forms of behavior (Pillsbury, 1998). Although Pillsbury’s views of responsibility and culpability are shared by many legal commentators, Justice O’Connor provided some reasons why background experiences are relevant for assessing issues of culpability, including experiences of social deprivation or disadvantage. She wrote:

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If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, “evidence about the defendant’s background and character is relevant because of the belief, long held by society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse” (Penry, 1989, p. 319). This quote is important for a number of reasons. It links issues of disadvantaged background: (a) to diminished culpability; (b) to legal theories of attribution responsibility; and (c) to issues of partial excuse germane to attributive models of moral agency. Issues involving attribution responsibility remain important components of the sentencing process (Tadros, 2007), but this form of responsibility recognized by Justice O’Connor has been given less critical attention in criminal law commentaries than has been given to issues of status responsibility. The concept of attribution responsibility introduces issues of casuality into sentencing processes that warrant close scrutiny by mitigation professionals in order to identify relevant attribution of responsibility themes. Moreover, the mitigation professional needs to be able to link issues of attribution responsibility to theories of rationality, choice, and character in making differential cases of diminished moral culpability. We explore issues of attribution responsibility in greater detail in Chapter 8.

Attribution Responsibility, Causality, and Models of Character

Tadros (2007) contends that the focus should shift in the penalty phase of the criminal process from questions of individual responsibility (status responsibility) to issues of attribution responsibility. Attribution responsibility refers to the conditions or circumstances involving the fair attribution of morality to an offender’s moral character. This type of responsibility is deemed more appropriate for culpability inquiries in the penalty phase of the criminal process because of its focus on identifying an appropriate reaction to an “agent qua an agent” for his or her harmful behavior (Tadros, 2007). Many character theories of responsibility assume “that an individual is responsible for his action only insofar as his action was reflective of his character” (Tadros, 2007, p. 22). Typically, the agency of the defendant is evaluated within this perspective in terms of the defendant’s settled character and its influence on the agent’s action. The slippery slope for most character theories, however, is often the extent to which the person is responsible for his character. If the person’s disposition toward good or evil is not voluntary, then this raises serious questions

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about holding that person responsible for his or her behavior. For this reason, luck is recognized by a number of scholars as an important consideration in evaluating the role of character in culpability assessments. In fact, Hurley (2003) considers luck the opposite of responsibility. This includes the brute luck associated with constitutive notions of luck that represent the chance factors associated with our genetic heritage that play a determinative role in the development of specific constitutional capacities, as well as issues of moral luck that are also influenced by factors outside of the personal control of an individual. Should persons with bad character receive harsher sentences than persons with good character? The answer to this question depends on the goals of punishment and the theory of character adhered to by a decision maker. Future-oriented approaches to punishment (associated with utilitarian principles of punishment) mete out harsher sentences for the protection of society in dealing with persons of bad character because the person is presumed to be much more inclined to reoffend than persons without bad character (Roberts, 2008). An implicit assumption is this philosophical approach to punishment is a causal model of character. In causal models of character, it is important to differentiate aspects of character caused by factors that can be fairly attributed to the actor (Pillsbury, 1992). Under this approach, if the crime can be fairly attributed to specific aspect of the offender’s character, then the decision maker needs to select an appropriate reaction to those character traits in order to protect society from future criminal infractions. Pillsbury wrote, Under this view, wrongful actions that stem from those aspects of character caused by other persons or by natural forces should be excused; wrongful actions that stem from character traits attributable to the individual should be punished. The approach builds on the common intuition that, while persons are generally responsible for their own character, extraordinary environmental or genetic influences may preclude such responsibility. (1992, pp. 730–731) Chapter 7 includes an analysis of debates in the philosophical and social science literature about identifying traits that are attributable to the individual rather than the environment. Causal models of character differ in subtle ways in how criminal behavior is evaluated from other conceptual models of character. For instance, representative models of character are concerned with what actions reveal about the person’s character (Sendor, 1996). Does the action reflect a fundamental aspect of the offender’s moral character? The offender’s action, in this approach to character,

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“expresses or reflects or is evidence of the offender’s enduring inclination or settled disposition to violate the law” (Sendor, 1996, p. 104). When the action is not reflecting an enduring aspect of offender’s moral character, then adherents of representational models of character do not believe that the person warrants blame or praise for their actions (Pillsbury, 1992; Sendor, 1996). In fact, Nicola Lacey (1988, p. 66) wrote, “it is unfair to hold people responsible for actions which are out of character, but only fair to hold them so for an action in which their settled dispositions are centrally expressed.” This viewpoint excludes moral actions that are out of character that are committed by both bad and good people. In addition to these two widely held views of character, there is also what has been termed in the legal literature “moral agency models of character” (Arenella, 1992). Arenella (1992) has opined that rationality, knowledge, and a fair opportunity for avoiding non-adherence to laws are the attributes that are employed in making fair attributions of conduct rather than fair attributions of moral character. He wrote: Criminal law theory and doctrine has, for the most part, embraced this liberal paradigm for moral responsibility and articulated a conduct-attribution version of it. According to this account, individuals deserve moral blame for conduct that breaches community norms when that conduct can be fairly attributed to them. The law’s conduct attribution model of moral responsibility generally requires a demonstration that the actor made a knowing, rational and voluntary choice to act in a manner that breached community norms. (1992, p. 1517) However, Arenella (1992) questions whether these assumptions provide adequate grounds for assessing moral agency. Arenella (1992) provides a useful way of assessing moral desert that is often ignored in assessing the contributions of character to issues of moral agency and culpability. We believe that his character-based conception of moral agency identifies a set of attributes that mitigation professionals should take into account in assessing issues of moral culpability in their penalty-phase inquiries. Arenella wrote: The capacity to care for the interests of other human beings; the internalization of others’ normative expectations, including self identification as a participant in the community’s blaming practices; the ability to engage in moral evaluation of one’s character and acts, the capacity to respond to moral norms as a motivation for one’s choices; and the power to control those firmly

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entrenched aspects of character that impair one’s ability to act in accordance with one’s moral judgments. These character-based moral agency attributes presuppose a far more robust account of knowledge, rationality, and control than that required by the criminal law’s rational choice conception of moral agency. By deriving its account of moral agency from its account of the fair attribution condition, the criminal law’s conduct attribution model of moral responsibility starts backwards and offers an incomplete account of when individuals deserve moral blame from criminal liability. It permits the conviction of some offenders who should not quality as morally accountable actors even though their wrongful conduct is fairly attributed to them. (Arenella, 1992, p. 1525) Although Arenella’s critique is directed at guilt determinations, it identifies issues about blameworthiness that shift the focus of inquiry from identifying culpable conduct to identifying culpable character. As a consequence, his character-based model of moral agency can help mitigation professionals in shifting discourse from issues of fair attribution of conduct to fair attribution of character, which is a primary consideration in penalty-phase deliberations in many capital cases. Landon (1997) has argued that character is probably one of the most confusing areas in the law of evidence. It is proscribed in the guilt/innocence phase of a criminal trial, but given high value in the sentencing or the penalty phase of the criminal process. Nonetheless, most writings on the subject have not clarified how character diminishes culpability. Some of the commentators on mitigation of culpability adopt causal explanations of the role played by character, mental illness, and other factors in determining the offender’s behavior (Kierchmier, 2004). They attribute the offender’s culpability and responsibility for the crime to these causal conditions, including the causal role played by character. However, many legal commentators have challenged causal views of diminished responsibility and diminished culpability because causality does not provide what they consider a relevant moral condition for mitigation of responsibility (Litton, 2005; Morse, 2003; Pillsbury, 1998; 1992). In the viewpoint of many of these critics, “the touchstone of responsibility” is rationality and uncoerced choice, and not issues of causality (Litton, 2005; Morse, 2003). Indeed, most legal critics of causality argue that any factors affecting capacities with effects on issues of rational choice or rational self-control are what should be deemed significant in assessing issues of general and partial responsibility (Morse, 2003; Litton, 2005; Pillsbury, 1998). Litton wrote:

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[S]uffering abuse is relevant if it caused an individual’s capacity for rational self-control to be diminished to some degree, in comparison to the capacity for rational self-control necessary for full responsibility. Note that if the abuse has caused a diminished capacity for rational self control, whether in general or in stressful situations, what is morally relevant to assessing the agent’s responsibility is not the abuse, but rather the diminished capacity for reasoning. (2005, p. 1071) In essence, a person can have a long history of abuse, but if this history is not influencing the offender’s capacity for rationality or rational self-control, then some legal theorists would argue that the history of abuse is irrelevant to making a case of diminished responsibility or culpability (Morse, 2003). For this reason, fair attribution of character is an alternative approach from the fair attribution of conduct approaches widely adhered to in current criminal jurisprudence that ignore important fairness issues involving the life and character of an offender.

Personally Mitigating Factors and Issues of Fairness

The Supreme Court of the United States has emphasized that the individualization of punishment requires consideration of the criminal’s character and record in determining an appropriate sentence (Williams v. United States, 1949). These two considerations typically do not involve the mitigation of the offender’s individual responsibility for the crime, but focus instead on broader moral issues of fairness involving the culpability of the offender as a moral agent. The role of luck in constituting who and what we are is an important fairness concern. This issue confronts matters often raised by mitigation practitioners about whether it is morally legitimate to consider offenders responsible for something that is a matter of luck. Luck or chance is always a possible explanation for actions whenever an action is resulting from factors beyond the person’s control. “Where a significant aspect of what someone does depends on factors beyond his control, yet we continue to treat him in that respect as an object of moral judgment, it can be called moral luck” (Hurley, 2003, p. 81). For this reason, a major task confronting mitigation professionals is to take into account the contributions of moral luck in examining issues of culpability in the penalty phase of a capital case, including issues of moral capacity. Moral capacity is a controversial concern in sentencing jurisprudence because it can introduce questions into culpability deliberations about offenders’ having the psychological ability to make moral choices (Pillsbury, 1998). These abilities were described by Arenella (1992) as key attributes for assessing the status of the moral agency of an offender. Social scientists recognize that attitudes are

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influenced by factors from a person’s experiences. Attitudes towards moral concerns are no exception. Issues of right and wrong involve processes of socialization that vary from social environment to social environment (Baumeister, 1997). Because we inhabit different roles that occur within different life histories and traditions, any choice of what a person should do is contingent on the specific story associated with that person’s history and choice opportunities. Philosopher Alasdair MacIntrye (1981) has opined that the roles that a person inherits from the environment in which he or she is born represent his or her moral starting point. Individuals in any social environment are part of the traditions and the moral expectations of that inherited environment. As a consequence, it is also an important part of a defendant’s life story that should not be ignored in any moral evaluation of that defendant’s behavior or description of that defendant’s capacities for morality. Although the offender’s criminal character might be consistent with the defendant’s instant offense, the moral significance of a criminal background for assessing issues of moral desert is an essential consideration in identifying and in developing mitigation themes and strategies for these individuals. Persons raised in “criminogenic” environments are placed in situations involving a harder choice for making moral decisions than persons raised in what Hartman (1958) would have termed “the average expected environment” for developing normal moral capacities. Litton (2005) contends that the social and the cultural contexts within which the defendant was raised introduce a fairness issue about whether the defendant had a fair opportunity to receive a minimally decent moral education for adhering to societal expectations (Litton, 2005). Without exposure to this type of environmental “safeguard,” he contends that we cannot reasonably expect a person to conform their behavior to requirements of the law in ways similar to persons who had an appropriate moral education. Litton (2005) recognizes that exposure to certain social and economic conditions place relevant moral constraints on a person’s choices. In Litton’s view, these constraints should not be ignored in making a reasoned moral determination about the offender. He wrote, “the extent to which a defendant was deprived of a safeguard against incurring punishment plays a role in establishing the fairness of imposing criminal sanctions on individuals” (p. 1033). The fact that a person suffered severe abuse and neglect does not alter the person’s wrongful behavior or responsibility, but “it is relevant to the extent that it deprived him of a morally significant safeguard” (p. 1064). It is also consistent with Hurley’s (2003) reasonbased views of responsibility that call for the need to immunize people from issues of moral luck in assessing blameworthiness concerns.

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Offenders often encounter circumstances in which they confront conflicting moral obligations. For instance, some individuals are raised in communities that highly value the capacity to use aggression in defending one’s family, friends, or neighborhood. This kind of social expectation often leads to many types of untoward consequences. The ideal of being able to defend oneself from attack can result in an arrest for actions valued by one’s primary group, because these violent defensive actions are simultaneously disapproved of by our formal legal institutions. How likely are youths raised in these violent environments to weigh conflicting standards when their reputation is attacked by someone who shares similar expectations about self or community defense? Although youths from these environments may know that violence is wrong in an abstract sense, the duty to respond to the assault with aggression is rooted much more in actual experience than are the formal proscriptions against using violence. Indeed, youths who are brought up to value not showing weakness face tougher decisions when they find themselves unjustly attacked or provoked by others than individuals who have not been exposed to a culture that places significant value on use of violence in settling disputes. A virtuous member of their group is expected to show the appropriate courage needed in defense of his reputation, honor, and self-concept. They were born into these values and roles, which place obvious constraints on their response choices and on the development of their character structure. Competing moral standards can contribute to distorted judgments of how specific ends can justify the use of violent means in resolving unjust circumstances. Most perpetrators of violence believe that the violent means that they employed were justified, especially when the justifications are supported by group norms that exert pressures on individuals to avenge an unprovoked attack (Baumeister, 1997). In these circumstances, the individual will know that killing is wrong; much like knowing someone’s name, but the quality of emotion associated with this knowledge is different from the emotions attached to the standards of his or her primary group that are in support of a violent response. Indeed, expectations learned from close personal attachments are likely to exert a greater force on the individual’s behavior than the existence of general standards that are devoid of relevant emotional experiences. These emotional experiences have important implications for helping mitigation professionals focus on factors in a person’s life history that affect their moral development and response choices. The ability to make moral choices is influenced by the interactions of genetics and the environment (Pillsbury, 1998). The combination of these personal and

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environmental factors determines the actual likelihood of whether a person can choose to do otherwise. A person can have the hypothetical capacity to choose not to respond aggressively to personal attacks, but their environment might have disposed them in ways that make it difficult or harder for him to actually do otherwise. In effect, he lacks moral abilities that would inhibit him from use of aggression, which differs from the capacities held by individuals who were raised in different environments. Persons raised in highly violent and culturally deprived environments have not been exposed to norms and experiences that would aid them in inhibiting the impulse of using aggression in responding to threats or provocations. As a consequence, it would be fundamentally unfair to apply standards to them that ignore the factors that make their choice harder than choices made by persons from different backgrounds. Practical reasoning is heavily dependent on experience, and this is one of the fundamental reasons why youths are treated differently from adults in current capital sentencing practices. Youths lack the kind of experience that is often needed to understand the real consequences of their behavior. They can have an abstract understanding of something without having relevant cognitive and emotional experiences that assist them in their deliberations about conflicting moral standards. Adults who were culturally and socially deprived can also lack many of the same needed experiences that would diminish their degree of fault for engaging in criminal acts. For this reason, mitigation professionals need to have a clear understanding of how experiences of cultural and social deprivation can diminish a person’s moral culpability. A good way of doing so is by examining the attributes previously described by Arenella (1992) for assessing the status of the defendant’s moral agency. The duty of the social scientists involved in the mitigation process is to help the jury understand the potential flaws and weaknesses in human character resulting from luck or other chance considerations. For this reason, the mitigation professional needs to obtain data about each of the following issues in identifying personally mitigating factors: (1) Does the defendant have a history of unfair life experiences that have significantly constrained the defendant’s response options and character development? (2) What is the nexus between propensities for crime and issues of luck? (3) What are the connections between moral luck and issues of lack of control or lack of choice? We intend to review how to implement each of these tasks in framing fairness issues in Chapter 7 and Chapter 8.

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Summary

This chapter introduced some of the potential contributions of adverse background experiences in the mitigation of culpability. In examining the relationship between adverse experiences and culpability, we hoped to address some of the common puzzles in legal theory and philosophy encountered by mitigation professionals in identifying constructs that are helpful in framing issues of mitigation of punishment. In addition, we examined the potential conflation of concepts in penalty deliberations that can impede efforts to mitigate the offender’s moral culpability. Concepts like “responsibility” and “culpability” are used in many interchangeable ways that can introduce biases about specific themes involving diminished forms of culpability that need to be challenged by members of a mitigation team. Professionals in this field of practice have to be vigilant in disputing and responding to the narrow interpretations of these concepts that stress negation of responsibility rather than diminished levels of moral culpability relevant to sentencing decisions. Mitigation professionals are not negating or exculpating any defendant of moral blame, but instead helping the court examine factors affecting the degree of the defendant’s moral culpability For the above reasons, forensic practitioners should have knowledge of issues in law and moral philosophy that frame current disputes in assessing moral blameworthiness in the sentencing of capital offenders. Practitioners involved in culpability assessments are expected to rely on these legal and moral constructs in developing relevant themes of proximal and remote forms of mitigation. Without this background information, mitigation professionals cannot effectively apply their knowledge of social science in addressing mitigation concerns. For this reason, a primary aim of this chapter has been to identify potential points of confusion associated with highly abstract concepts in legal discourse that govern mitigation practice in the penalty phase of capital cases. In the next section of this book, we will shift the focus from these abstractions to the subject of linking these moral concepts of culpability to social science methods and theoretical frameworks that can guide them in performing their professional duties associated with the development of appropriate mitigation themes. In Chapter 5, we will describe a theoretical perspective that can help practitioners frame their information-gathering processes for linking relevant life-course experiences to issues involving fair attributions of conduct and fair attributions of character that were described in this chapter. In Chapter 6, we will examine the utility of using social-information-processing theory in developing themes germane to practical reasoning concerns. Chapter 6 will also focus on issues of choice involving current psychological and criminological theory of self-control and their

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relevance for assessing an offender’s inability to conform their behavior to the requirements of the law. Chapter 7 will examine character flaws and weaknesses that are due to various forms of social and cultural deprivation. Chapter 7 will also review theoretical developments with implications for understanding variations in moral character and for developing themes of diminished moral culpability. The overall aim of each of these chapters in the next section of this book is to link social science theory to specific themes for telling the life story of offenders in ways that do not ignore issues of moral desert in assessing the culpability of capital defendants.

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Theoretical Frameworks and Concepts for Guiding Social History Investigations

humans are complex creatures. Their development, behavior, and functioning are affected by biology, psychology, and social factors. A thorough understanding of a capital defendant’s social history cannot ignore the biological and psychological contributions to the defendant’s many different life trajectories. A narrow focus in the investigation of a single dimension of a defendant’s functioning will not provide sufficient descriptive data to inform most narrative presentations in a capital case. Expert testimony regarding the signs and symptoms of a psychiatric disorder is informative, but not descriptive of the life and character of an offender. The offender’s mitigation story is best addressed by introducing how the effects of that impairment permeate all aspects of the offender’s life and character, as well as their involvement in the instant offense. Psychological testimony about dispositions and character traits also will not tell a good mitigation story in and of themselves. Most good mitigation stories include discussions of relevant issues of misfortune associated with heredity and environment that contribute to the development of many of the defendant’s character weaknesses, history of involvement in crime, and other potential difficulties. The many noteworthy misfortunes of life found in the social histories of capital offenders involve the interaction of significant human frailties with environmental conditions of chance or luck that are often beyond the offender’s personal control. With knowledge of these circumstances, jurors are in a better position to 75

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select an appropriate sentencing response that does not ignore important fairness considerations surrounding the defendant’s violent behavior and other relevant life choices. In my opinion, it is important to explain to jurors how the lives of capital defendants differ from the lives of ordinary offenders. However, just identifying differences in risks between various types of offenders without clarifying how they are a product of normal human desires could serve to aggravate rather than mitigate their penalty. In other words, the telling of a mitigation story requires much more than just identifying risk and protective factors in a capital defendant’s social history. A good mitigation story must connect these risk factors to a framework that takes into account fairness considerations associated with specific human frailties that are relevant to assessing the defendant’s history, character, choices, and culpability. Good mitigation stories should dispel any myths about inherent forms of evil possessed by a capital offender by making a concerted effort to link the actions of an offender to normal social processes involved in responding to the demands of hostile life circumstances that pervaded their formative years of development. Adverse experiences are a dominate component of the lives of most defendants in capital cases. Psychiatric disorders often lurk undiagnosed in these cases, even in clients who have been subjected to superficial (so-called drive-by) evaluations by mental health professionals in our current justice system. In addition, learning disabilities and other cognitive impairments are often masked by the client’s coping strategies that developed in response to exposure to various types of stresses and strains. Poly-substance abuse and addiction are also commonplace in the lives of capital offenders, but are often secondary to trauma or untreated illnesses resulting from exposure to various relational adversities and other hazards or risk factors commonly seen in the lives of persons raised in conditions of economic poverty and/or severe social and cultural forms of deprivation. These potentially mitigating factors can be overlooked when the context of the offender’s life is not investigated in a systematic fashion. In order to understand the background and circumstances of the defendant’s life, the defense team must employ a painstaking multi-generational investigation of all the factors that influenced the defendant’s development, behavior, and psychosocial functioning. This role in a capital case must be filled by a professional with skills and expertise not traditionally possessed by attorneys (Andrews, 1991; Guin, Noble, & Merrill, 2003). The fundamental aim of this chapter is to review relevant scientific formulations for guiding investigations of the defendant’s life experiences across each and every phase of the defendant’ life history.

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Another aim of this chapter is to help mitigation professionals examine capacity, choice, character, and background issues in assessing the lives of offenders by using the life-course perspective as a guiding framework. The “life course” is a concept and a theoretical perspective predicated on assumptions derived from developmental systems theory (Ashford & LeCroy, 2013). “Developmental systems theories move beyond the simplistic division of sources of development into nature-related and nurture-related variables or processes, they see the multiple levels of organization that exist within the ecology of human development as part of an inextricably fused developmental system” (Lerner et al., 2006, p. 26). Thus, the life-course perspective assumes that the person and environment system of development cannot be understood without significantly emphasizing the examination of how the relationships among the biological, psychological, and social levels of organization in personal and environmental transactions influence the life destinations of crime, violence, mental illness, and other forms of impairment, distress, and deviance commonly found in the social histories of capital offenders. The life-course perspective also adheres to principles and concepts that are useful for interpreting the biopsychosocial information gathered by mitigation specialists in performing an investigation of the defendant’s social history.

The Social History Investigation

The presentation of evidence in any sentencing process is directly related to the quality of the biopsychosocial investigation. Practitioners employed on a defense team as mitigation specialists must obtain objective and reliable information for the fact finders to consider about the defendant’s social history. The implications for practitioners, regardless of their professional training and background, are immediately apparent. The mitigation specialist is expected to engage in a systematic process that is consistent with scientific principles and methods of investigation to articulate and corroborate the defendant’s social history. Regardless of the type of case, the mitigation specialist functions as a fact-investigator. In carrying out this role, collection of life history records for the defendant and the defendant’s family members is crucial, including past generations of members of the defendant’s family. The mitigation specialist is expected to systematically review educational, mental health, medical, employment, military, justice system, and other types of records to help inform the defense team in examining the range of experiences and settings that are needed to understand the context of the defendant’s social history and behavior.

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Data-gathering process After the analysis of the collected life history records, the mitigation specialist should identify and interview key persons in the life of the defendant, including family members, friends, social service providers, teachers, neighbors, religious figures, work colleagues, community informants, and childhood companions. These collateral contacts are considered essential in the identification of data not reflected in written records or in other forms of documentary evidence. These witnesses provide vivid and detailed accounts of the defendant’s social environment and offer additional insights into patterns of behavior and functioning evident in the defendant’s life history. Throughout the course of the case, the mitigation specialist conducts multiple interviews with the defendant and other key informants. The information obtained from these sources is used by the mitigation specialist to document the defendant’s social history. Interviews of potential lay witnesses are also important and must be undertaken by a professional on the defense team with the appropriate training and experience to overcome barriers to disclosure. Information must be obtained in a complete and unbiased fashion; then this information needs to be organized and connected to a larger fund of information about the defendant’s history and character. Capital defendants and members of their families are often difficult to interview about various experiences in their lives. The mitigation assessment must not ignore the fact that many individuals lack the ability to provide accurate personal information about events and other life experiences. This kind of problem can be a manifestation of previously unobserved impairments that occurred during critical periods of the informant’s development. Lack of training can result in misinterpretations of these behaviors as forms of hostility, manipulation, unwillingness to cooperate, or even lying. However, when the behaviors are analyzed with a scientifically grounded inquiry process, then the mitigation team is more likely to see these responses as red flags warranting further critical inquiry into relevant diagnostic possibilities or other alternative explanations. Investigating these difficulties within a broader context requires the mitigation team to take into account alternative biological, psychological, and social influences on behaviors encountered by the defense team during the investigative process. What is not said can often be more important than what is actually said during the course of a mitigation investigation. By understanding the defendant’s context, the team is in a better position to understand how contextual considerations are shaping the defendant’s responses to the mitigation investigation process. The development of contextual considerations is achieved by

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adhering to a set of principles of investigation that are consistent with the scientific method. Key Principles

A key principle in completing a mitigation investigation is to obtain a cross-section of data about any event or life experience that is uncovered during the data gathering process. Biased investigations are investigations that do not adhere to systematic methods of data collection (Kupferberg & Ashford, 2008). For this reason, the mitigation investigator must obtain a representative sample of additional information about any salient factor obtained during the course of the data gathering process. The representative sample should not be limited to a particular domain of the defendant’s functioning or a single social institution within which his or her life is embedded. Any behavior or factor identified during the mitigation investigation will require the defense team and its experts to rule out alternative hypotheses or explanations that are generated for that behavior. For this reason, investigators need to collect a representative sample of information from biological, psychological, and social domains of functioning. Collecting this broad range of information increases the likelihood that the mitigation team will not miss information relevant to the identification of competing explanations for a specific disclosure or lack of disclosure of relevant information. Some patterns of behavior are due to the combination of temperamental factors and specific kinds of experiences that are distinct to a particular type of individual. This important kind of inference can be overlooked if data was not obtained about genetic propensities in a family for a specific temperament, knowledge of how the defendant’s temperament remained stable or changed over time, styles of acceptable behavior within the defendant’s family context, and how the defendant’s temperament combined with specific social experiences that reinforced the adoption of an in-question behavioral response style. After obtaining a broad array of information during the investigation process, this information must be documented, corroborated, developed, and analyzed in ways that help explain salient information elicited during the biopsychosocial investigation. The mitigation investigation integrates information from multiple sources as a basis for expert opinions and court presentation of the defendant’s social history. The history will be long and complex, requiring ongoing communications between members of the capital defense team and additional experts to determine salient considerations. Counsel needs an unbiased and well-documented history of the defendant’s life to assist in the identification and development of appropriate mitigating evidence for presentation in the penalty phase of a capital

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case. In order to establish a comprehensive social history, the mitigation specialist must adhere to accepted scientific principles and procedures. To this end, the mitigation specialist must collect a cross-section of information about biological, psychological, and social impairments, as well as a cross-section of biopsychosocial information about key life events, transitions, life trajectories, problems in living, and emotional dispositions. A cross-section of information is needed to ensure that the team does not misinterpret factors that helped to shape the defendant’s history, behavior, and character. The initial phase of a biopsychosocial investigation is similar to casting a net to catch fish in a large area of water. The cross-sectional inquiry attempts to obtain as much data as possible across a broad range of categories of information in the absence of any guiding hypotheses. As information is obtained, the goals of the investigation become more focused. As Cunningham (2002, 2010) noted, an accurate social history analysis must focus initially on data collection and not embark on fact-finding determinations derived from prematurely selected hypotheses that might miss other important considerations. In addition to making sure that the mitigation professional gathers a broad cross-section of information about any topic germane to the defendant’s life experiences, the mitigation specialist must also establish a chronology of the defendant’s social history. The chronology focuses on identifying the longitudinal or developmental aspects of specific capacities, role transitions, dispositions, maladaptive coping strategies, changes in environmental settings (housing, neighborhoods, communities, geographical locations, and relevant institutions) and other salient life concerns. For this reason, the chronology should include information about: • Key life events • Deviations in thought, mood, and behavior considered signs or symptoms of specified and unspecified mental disorders • Key psychosocial developmental transitions • Transitions and events within pivotal life domains and social institutions • Turning points in life trajectories germane to school, work, intimate relationships, leisure time activities; emotional propensities, and friendship networks • Psychological and physical traumas • The onset and continuity of adaptive and maladaptive coping strategies • Recurrent difficulties in relationships • Disruptions in psychosocial development • Changes in emotions and cognitions following psychosocial stressors and/ or physical traumas

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• Opportunities and barriers to relevant life choices • Other developmental and life history considerations The chronology of information covered in the prior formulation needs to be gathered in a systematic fashion consistent with scientific principles of inquiry. Hypothesis-testing phase of the investigation process After developing the defendant’s chronology of manifestations of life experiences for use in a critical reasoning process, the mitigation specialist and other experts need to analyze the findings through various theoretical lenses and social science concepts. These lenses can help the defense team identify variables and factors that can guide the development of relevant mitigation themes. This process also involves engaging in relevant reviews of the scientific literature to guide the testing of competing hypotheses about observed manifestations in the defendant’s chronology. Ashford and LeCroy (2013, p.32) wrote, “The testing of hypotheses is a practice that is consistent with the methods of science. ‘Critical inquiry is a process in which theories are relentlessly criticized—and only those that withstand the process are retained’ (Dilts, Jr., 2001, p. 16). Not all hypotheses can be tested in a lab, which is especially true of practice in social work and in other clinical professions. Hypotheses are intended to assist the mitigation professional in identifying potential determinants of the defendant’s behavior, life patterns, and relevant life trajectories. Mitigation specialists employ biological, psychological, and social formulations to guide their testing of hypotheses about the information contained in an offender’s chronology of relevant social history information. Their biological formulation focuses on the collection of information about genetics, physical conditions, exposure to medications/substances, symptoms from key mental health domains (mood, anxiety, psychotic, somatic, cognitive, substance, personality, etc.) and correspondence between demographic characteristics and known epidemiological characteristics of mental disorders. (Ashford & LeCroy, 2013, p. 21) These specialists also focus on identifying whether the defendant or his parents were exposed to toxins or other environmental hazards that could have affected the defendant’s mental or physical functioning. With the benefit of this theoretically

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structured information, the practitioner is in a better position to identify relevant biological determinants of the defendant’s behavior. Mitigation specialists also need to employ psychological formulations in their hypothesis-testing processes. Psychological formulations are probably the most complex, because they include a broader range of concepts derived from known theories of human development and behavior: psychodynamic, cognitive, and behavioral. For this reason, the mitigation specialist should have some background and training in these theories in order to obtain relevant information from these general categories of psychological information. Figure 5.1 provides an overview of categories of theoretically relevant information that the mitigation specialist ought to collect in the data gathering process. In addition, the mitigation specialist is expected to gather information about psychological vulnerabilities, the consequences of stress on the defendant’s functioning, and information about the defendant’s coping strategies and defense mechanisms. Knowledge of these psychological domains of information is important and supports the ABA’s recommendation that at least one member of the mitigation team should have some knowledge and training in the field of mental health. Figure 5.1: Components of psychological theoretical formulations

Psychodynamic Components Difficulties with trust or having to depend on others Difficulties with control of emotions Difficulties with self-esteem Difficulties with relationships Cognitive Components Automatic dysfunctional thoughts Negative core beliefs Cognitive distortions (errors in logic and perception) Behavioral Components Is there evidence of behavioral reinforcement of a maladaptive behavior? Is there something that extinguishes a desired behavior? Is there paired association between the behavior and an environmental cue that initiates the behavior? (Derived from Campbell & Rohrbaugh, 2006; and Ashford & LeCroy, 2013)

“Social formulations” focus on obtaining information about role histories and role problems at various phases of the defendant’s life. This includes obtaining information about the defendant’s social positions in various social institutions and other relevant social structures with potential effects on the defendant’s social

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functioning and life choices. Social functioning refers here to the defendant’s ability to accomplish the tasks necessary for daily life and to fulfill the social roles prescribed by members of his own community or subculture. The social formulation also needs to focus on obtaining information about opportunities and barriers to resources, knowledge, and skills in various domains of the defendant’s social environment: family, neighborhood, school system, and peer networks. The levels of stress resulting from these adverse experiences and resource deficits should also be documented, including the pressures from distinct cultural beliefs and expectations that contribute to the development of distorted identities with corrupted senses of honor and pride that vary from the dominate community’s current norms and values. These deviant identities are typically structured by institutions in the defendant’s environment that can help explain many different forms of social action commonly found in communities with higher rates of crime. The prior biopsychosocial formulations are easily integrated within the life-course perspective. We assume that this perspective will provide mitigation professionals with a useful theoretical framework for isolating salient trajectories in the defendant’s life history. This framework is predicated on a number of empirically verified assumptions that can help experts and members of the mitigation team place specific moments in time in a defendant’s chronology within a broader context for implementing the hypothesis testing phase of the mitigation process.

The Life-Course Perspective And Issues Of Context

The life-course concept has been adopted by a number of scientific disciplines, including scholars from anthropology, criminology, demography, economics, developmental psychology, developmental psychopathology, history, sociology, and other disciplines involved in the investigation of human developmental concerns. Some have argued that burgeoning interest in life-course theory was prompted by the rapid social changes of the twentieth century: “the Great Depression, two World Wars, the Cold War, Vietnam, the Civil Rights Movement, the Women’s Movement, periodic prosperity and economic downturns” (Elder, Johnson, & Crosnoe, 2004, p. 5). Each of these socio-historical periods resulted in important changes in taken-for-granted life patterns. People have common human needs that are connected with varying life tasks, but these needs and tasks are not as universal as once assumed (Heinz & Marshall, 2003). For instance, youths today do not confront the same life choices and tasks in coping with transition from adolescence to adulthood as youths experienced in the early 1900s or 1950s. What was previously considered universal traits of adolescence changed substantially with changes in time (history) and in place

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(socio-geographical context). Many middle-class adolescents today are no longer raised in homes that rely on authoritarian parenting practices. As a consequence, we are seeing fewer middle-class adolescents in the United States going through the same kinds of rebellion in relationships with parents that were observed during the 1950s or 1960s. However, authoritarian parenting practices are still common in many parts of the world and in the families of many capital offenders who were excluded from participation in many of our social institutions that reinforce the expected adoption of non-authoritarian parenting relationships and practices. Typically, the poor and socially excluded in our society are subjected to increased exposure to permissive or authoritarian parenting styles and their attendant consequences. For this reason, individuals who are raised in these contexts of extreme cultural and social disadvantage are at increased risk of developing impairments in functioning and in psychological dispositions that differ substantially from youths raised in more advantaged family contexts. The contribution of the social context in shaping human needs and functioning has been widely recognized for quite some time. For instance, Eric Fromm (1942) is known for having identified the contributions of variations in contexts on human needs and character. In his view, the desires, needs, and characters of individuals are influenced by the experiences and styles of life common to specific social groups. He also argued that the conditions of life in these social groups will not only vary over time, but put different demands on individuals to adapt to emerging contextual variations in the group’s norms and values. The lives of capital defendants often occur in contexts that vary from the middle class, and it is important for mitigation professionals to identify how changes in the conditions of the social groups in which they are embedded have helped shape their differential goals, needs, desires, beliefs, values and coping responses. Most individuals have developed stereotypes about capital offenders from various forms of media that ignore the actual context of the lives of capital defendants (Baumeister, 1997; Haney, 1995). As Haney (1995) observed, many capital defendants who had the dubious distinction of being executed after capital punishment was reinstituted did not have their social histories described in a proper fashion prior to being sentenced to death (e.g., Robert Harris and David Mason). This author participated in a habeas case in Arizona that had a similar fate. The case of Donald Eugene Harding reinstituted the practice of capital punishment in Arizona, and it was also a case in which the defendant’s social history was not properly described in the penalty phase of that case. The trial court neither heard mitigating evidence about the context of Donald Harding’s social history nor heard about how his social history affected the context of the crimes for which he was convicted. Inasmuch as his history painted an excellent picture of how he

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was biologically, psychologically, and socially damaged by exposure to extraordinary life circumstances, this information was never taken into account in selecting his sentence. His social-history information was introduced in one of his habeas appeals, but not in the sentencing phase of his capital case. Harding was the first execution in Arizona after the landmark cases in capital jurisprudence during the early 1970s that created a pause in the use of the death penalty. It took Don Harding 10 minutes to die in Arizona’s gas chamber, and Robert Harris in California had a similar fate—Harris took 11 minutes to die in California’s gas chamber. Each of these capital offenders was portrayed in the media prior to their execution as a monster deserving of death, and these images were not successfully challenged in the penalty phases of their cases. Their crimes and social history were very complex and not subjected to the types of scrutiny now required in capital defense practice. Craig Haney wrote: When I began to study the backgrounds and social histories of capital defendants almost 20 years ago, very little was known about the social and psychological forces that helped to shape and influence their life course. It quickly became clear that many capital defendants shared a pattern of early childhood trauma and maltreatment. What was lacking was a theoretical framework with which to understand how the effects of that shared history could be manifested years later. But we now have developed much of that theoretical framework. In part, it reflects a turning away from a century old bias that located the causes of violent criminality exclusively inside the individuals who engaged in it. (Haney, 1995, p. 561) In keeping with Haney’s observations, we believe that the life course is the theoretical framework that mitigation professionals ought to employ in informing their initial investigations of the lives of capital defendants. The life-course perspective recognizes the important role played by social and cultural factors in causing violent behavior and helps practitioners identify relevant variations in criminal and violent pathways. Early contributions to the life-course perspective The study of lives differs from the study of behavior, and the life-course perspective can apply to both. In psychology, life-course theorists have focused on examining issues of continuity and change involving various dispositional traits or propensities towards aggression, insecurity, poor self control, shyness, and so forth (Wheaton & Gotlib, 1997). Moreover, the life-course perspective has promoted examinations of propensities for engaging in various forms of deviance and

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how these deviant propensities may change over time (Moffit, 1996). For instance, Moffit and her colleagues (Moffit, Caspi, Dickson, Silva, & Stanton, 1996) identified two types of offenders who follow distinct pathways of crime and antisocial behavior: life-course persistent and life-course limited offenders. In Moffit’s view, each of these types is caused by different factors (Ashford, Sales, & Reid, 2001; Benson, 2002). Moffit’s approach is consistent with traditions in developmental psychology that are concerned with examining specific behaviors, dispositions, skills, and traits over a substantial period of the life span (Ashford & LeCroy, 2013). Life-course theorists in psychology are not only concerned with understanding issues of continuity and change in specific traits or behaviors over time, they are also involved in investigating how specific psychological functions, traits, and skills in one stage of development compare with those in other stages of development (Ashford & LeCroy, 2010). This facet of the life-course perspective focuses on comparing and contrasting the causes and consequences of changes in behavior at one stage of development with other stages, without ignoring the contributions of relevant contextual considerations. The life-course perspective has stimulated interest in questioning a number of generalizations about specific developmental propensities previously taken for granted by many developmental theorists (Lerner et al., 2005). Prior to the development of the life-course perspective, psychologists assumed that variations in human development and other forms of individual differences could be understood independently of their social and cultural context. “Early models of psychology assumed that human behavior was determined by universal biological mechanisms that dictated human growth and developmental processes” (Ashford & LeCroy, 2010, p. 15). However, studies that took into account variations in social context resulted in fundamental challenges to many of the early assumptions in psychology about the salience of biology in explaining various normative-age variations in specific behavioral propensities. Most theorists now adhere to an interactional perspective that recognizes the importance of examining the interactions of biology with other relevant dimensions of human behavior, including social, cultural, and history or period effects. An excellent example of the important role played by contextual factors in obtaining valid knowledge of development occurred in research on the consequences of the timing of early sexual maturation in female adolescents on patterns of deviant behavior—the observed association in the developmental literature between the early onset of puberty in females and propensities for involvement in substance abuse, dropping out of school, sexual promiscuity, and other forms of social deviance. Researchers in Europe found, however, that this generalization about this observed association with deviance did not hold when variations in school settings were taken into account (Wheaton &

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Gotlib, 1997). This specific body of research showed that the type of school setting in which the adolescent female underwent early physical maturation had an important effect on the consequence of the biological experience of early physical maturation. Namely, adolescent females who attended coeducational schools (schools with males and females in attendance) were much more likely to engage in social deviance if they had an early onset of puberty than were females who attended all-girl schools. The findings of this research demonstrated that the study of developmental changes in behavior must take into account variations in context. Moreover, there is now a compelling body of evidence that shows that inherited emotional or temperamental tendencies are significantly influenced by the beliefs and goals that people hold based on their experiences in their cultural and social environments (Dweck, 1999). Mitigation professionals are interested in many of the explanations of behavior that involve questions commonly researched by life-course theorists from the field of psychology. Some of these questions include: (1) (2) (3) (4) (5) (6)

How do abilities for emotional regulation change over time? What are critical periods in developing self-control or emotional regulation? What are normative expectations for developing self-reflective or deliberative capacities? What are the causes and consequences of variations in moral socialization processes? What factors contribute to issues of continuity and change in the development of aggressive response tendencies? What factors influence the development of hostile attribution biases or other cognitive distortions in the perceptions of others in one’s social environment?

The answers to each of these questions can have important implications for helping jurors understand the development of relevant biological, psychological, or social impairments when assessing an offender’s moral culpability. Answers to these questions can also help direct mitigation investigators in isolating the consequences of these impairments for various domains of the offender’s life, character, and history. However, it is important to note that the focus of life-course investigations in sociology differs from the focus in psychology. In sociology, researchers are interested in understanding and predicting issues of continuity and change in life patterns rather than specific behaviors or dispositions. As Phyllis Moen wrote,

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“A life-course approach investigates people’s life paths as they play out in historical context as well as in the situational circumstances and chance events shaping them” (2003, p. 13). Accordingly, the fundamental aim of sociologists involved in studying the life course is in understanding how time operates at both a social-historical and a personal level (Elder, Johnson, & Crosnoe, 2004). Since W. I. Thomas and Florian Znaniecki (1919–1920) studied how the lives of Polish peasants changed after they migrated to the United States, sociologists have had an interest in studying life histories. Thomas assumed that sociologist needed to investigate “many types of individuals with regard to their experiences and various past periods of life in different situations, and ‘groups of individuals into the future, getting a continuous record of experiences as they occur’” (Elder, Johnson, & Crosnoe, 2004, p. 3). In particular, Thomas’s (1922) research focused on understanding how the trajectory of a person’s life would change in different situations. C. Wright Mills (1959) also recognized that sociologists had much to contribute to our understanding of the influence of context on a person’s life history or biography. In his view, the sociologist needed to study not only the person’s biography, but also the role of the historical context in a person’s biography—the intersections of a person’s biography with the period of history within which they lived their life (Mills, 1959). Glen Elder’s (1974) seminal research on the effects of the Great Depression realize Mill’s (1959) vision for a new science of the life course in the behavioral sciences. Elder’s (1974) research demonstrated that the Great Depression had the most negative effects on younger rather than older children who were exposed to its social forces. An important upshot of his research was that it helped identify a key principle in life-course theory of focusing on the contributions of the timing of life events to an individual’s personal biography. Elder (1991, 1996) is known in sociology and other disciplines for having established life-course theory as a distinct framework for examining changes in human lives. In his research and writings, he demonstrated how to integrate notions from structural sociology with principles of social psychology in ways that established the life course as a distinct field of social inquiry. He defined the life course as representing “the study of changes in age-differentiated life patterns that are embedded in social institutions and subject to historical changes” (Ashford & LeCroy, 2013, p. 43). Investigators who employ this approach want to understand how life patterns are influenced by changes in social institutions across multiple intersecting domains of a person’s life. His approach uses the concept of trajectory to understand variations in the social paths followed by people in key social domains of life: work, marriage, parenthood, and deviant ways of making a living—crime. That is, the life-course approach focuses on identifying common pathways for various

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life destinations (military service, becoming a lawyer, marriage, divorce, and other relevant status changes in a person’s life), including the life destinations of crime and other forms of social deviance. Many life-course theorists are also interested in knowing how current pathways—the sequence of events or transitions in a person’s life—differ from pathways at earlier periods of time. Each distinct pathway or trajectory is defined by a distinct sequence of events and life transitions. For instance, the social paths followed by a woman entering adulthood at the end of World War II differ from the paths followed by women today. Clearly, the institution of marriage has witnessed major social changes compared with what it was in earlier periods of history. The choices of roles facing women today are very different from in the past and do vary across social and geographical contexts. Hunt wrote: Recent sociological writings have pointed out that such conventions as marriage, once so central to the life course, are increasingly superfluous in the late or post-modern age. The social compulsion to marry seems to have declined. It is now a matter of choice and lifestyle preference. This exemplifies, at least in Western societies, how many of the once assumed certainties of life no longer seem certain. There are an increasing number of alternatives to the conventional marriage: there exists the freedom to choose the single life, to cohabitate, and now the legal liberty to live in union with a member of the same sex. (2005, p. 8) Hunt’s (2005) quote illustrates that the life course itself is an institution that is subject to processes of change. Today, the life course of many individuals no longer includes marriage, and this change was brought about by many other changes in institutions, including economic institutions that have affected role sequences in the world of work for both men and women. These sequences of roles also vary from one social group to another. There are different social institutions in different social classes that developed in response to different social needs that help shape the lives of many capital defendants. It is important for mitigation professionals to take into account how some of these institutions may have changed in socially and culturally deprived environments. Sociologists with interest in studying the life course focus on different questions from psychologists. Some of these differences in factors that they address are: (1) (2)

What factors predict early transitions from school to work? What factors predict a person’s likelihood of making a choice to marry or to divorce one’s mate?

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Are there different social pathways to desistance from crime? What is the common pathway—sequence of events or transitions— to having children? What are pathways to homelessness? What are marker events in the lives of murderers? What are pathways followed by offenders in the criminal justice system? What are marker life events in the pathways of delinquent youth?

In essence, a goal of the life-course approach in sociology is to identify the ordered sequence of role and event changes in a person’s life, using the key concepts of timing, trajectory, transitions, turning points, and other concepts and principles that are useful for understanding common and deviant directions taken in the lives of people who live in different social contexts. Fundamental principles and concepts of the life-course perspective Jurors are often confused by social explanations of behavior that discuss constraints on a defendant’s choices that are due to their abusive background or other life experiences associated with exposure to a rotten social background. In addition, prosecutors are quick to point out that defendants could have chosen otherwise because not everyone from their family or background has committed a murder. This common response to the contributions of social hazards and risk factors evident in the lives of many disadvantaged individuals ignores a number of key assumptions and principles about human behavior that are addressed by the life-course perspective. The life-course perspective assumes that people live in distinct contexts that represent a unique combination of personal and environmental circumstances that contribute to different life paths and life outcomes. However, prosecutors often frame their observations about the context of the offender’s life by ignoring either personal or environmental circumstances that can help jurors understand a specific life path taken by an individual defendant. For instance, an easily threatened child develops in a different context from that of a child who is not easily threatened (Ashford & LeCroy, 2010). Children with attention deficit disorders or depression also live in a different context from a sibling who lacks these conditions. Moreover, girls who grow up in a socially and cultural deprived family are exposed to a different context from boys growing up in that same environment. Yet most of the inferences that prosecutors make about defendants miss these important distinctions in the context of the defendant’s life.

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The oldest member of a large family obviously lives in a very different social context from the context of their younger siblings. For instance, an older sibling can be raised in either a much healthier or more traumatic context. This type of variation in context must be identified and documented by mitigation specialists. One family that I worked with in a capital case (the Gomez family) had 12 children. The father of the family was psychologically and physically available in the lives of the oldest children, but began seeing another woman around the birth of my client’s older brother (ninth child in the family), who preceded him in birth by approximately one year. The father of the Gomez family also had much more access to work when he was raising the older children. Four years prior to the birth of my client, however, the father’s work as a farm laborer dried up. This resulted in the family moving from neighborhood to neighborhood because of financial and other difficulties. These disruptions in the lives of the family during my client’s formative years had differential effects on his development from that of his older siblings. These types of variations in context have to be pointed out when comparisons are being made with your client and other members of his family who had different life experiences. These differences are also associated with different risk and protective factors associated with variations in mental and social developmental outcomes. Five Life-Course Principles

There are five general principles that have been used by life-course theorists in studying “phenomena at the nexus of social pathways, developmental trajectories, and social change” (Elder et al. 2004, p. 6). The first principle is: “Development is a lifelong process”. This principle recognizes that mitigation professionals have to take a “long-term perspective” in gathering data about clients (Elder et al., 2004, p. 11). Biological, psychological, and social changes take place across the span of a person’s life. For instance, a person’s orientation to work will change substantially in various phases of a person’s development: adolescence, young adulthood, and middle age. These changes might have continuities with trajectories in other areas of the defendant’s background that will not be identified without gathering a cross-section of longitudinal data. This type of data often illustrates how individuals experience major changes in their environments that correspond with other relevant maturational and psychological changes. The second major principle addresses the issue of agency: “Individuals construct their own life course through the choices and actions they take within the opportunities and constraints of history and social circumstance” (Elder et al., 2004, p. 11). This principle is essential for mitigation professionals to evaluate, because it is consistent

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with key assumptions in the criminal law that are not adhered to by all theories in the social sciences. The criminal law has adopted a view of humans as agents who can make choices. Ink has been devoted in the social science and law literature about the differences between how the law and the deterministic social sciences approach human behavior concerns (Lempert & Sanders, 1986). Though it is true that many social scientists adopt deterministic views of human behavior, some social scientists assume that the human sciences differ substantially from the natural sciences because the human sciences are studying the subjective aspects of human behavior. “The subjective aspects of behavior” refers to the reasons and other forms of meaning that influence social actions. These subjective meanings are not the same as the physical mechanisms underlying behaviors that are studied by neuropsychologists and psychiatrists (Harré, Clarke, & De Carlo, 1985). Similar types of physical mechanisms can underlie behaviors that have different social meanings or reasons for their performance. For instance, the behavioral gesture of “Hook ’em, Horns!” employed by fans of the University of Texas is meant to represent the head and horns of the school’s mascot, which is exactly the same physical gesture that has vulgar significance (“you are a cuckold”) in some Mediterranean countries. Unlike cause-and-effect responses seen in the natural sciences, a person’s response to this type of gesture is mediated by the meanings and emotions that they attach to the gesture, and not the physical characteristics of the physical stimulus. People do not have a behavioral reaction to many human gestures that would be universal across situations as is true of stimuli governing reactions observed in many of the natural sciences. Gravity in Texas will follow the same rules in New York or anywhere else on this planet under specified conditions, but a hand gesture will elicit a different response in different places because it is mediated by the meanings that the person attaches to the gesture that was learned in context-specific life experiences. For this reason, we cannot understand the variations in responses to gestures simply by identifying underlying physical mechanisms. Max Weber (1864–1920), jurist and sociologist, was noted for creating a theory of social action which supports many of the current assumptions about human behavior in criminal law and the life-course perspective. He provided different definitions for behavior than for social action. Weber opined that “behavior occurs with little or no thought, while action is the result of conscious processes” (Ritzer, 2010, p. 31). Lempert and Sanders (1986) contend that Weber’s theory of social action is still alive today in the law’s approach to understanding human actions. They wrote: By human action we mean human behavior that has some meaning for the person acting. It is the existence of subjective meaning for the actor that distinguishes action from mere behavior or reflexes. The social scientific

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understanding of human behavior cannot be reduced to some natural science understanding of the physical and biological processes that we observe. For example, in viewing a film of someone shooting a gun and killing another person, we may be observing a murder, an act of self-defense, or a patriotic deed. As behaviors these three possibilities may appear identical, but as actions they are profoundly different. The law is concerned with human action. (Lempert & Sanders, 1986, p. 3) Weber’s theory of social action was introduced to American sociologists by Talcott Parsons (1902–1979) in the 1930s. Parson’s theory of social action includes principles of voluntarism that are also consistent with Weber’s views of social action and his views of action in criminal law. Voluntaristic theories of human behavior place issues of purpose and choice at the forefront of social science investigation, which is an assumption that is also a key component of the life-course perspective in sociology. The life-course perspective assumes that a person’s course of life is chosen rather than predetermined by social structures. “Children, adolescents, and adults are not passively acted upon by social influence and structural constraints. Instead, [people] make choices and compromises based on the alternatives that they perceive before them” (Elder et al., 2004, p. 11). For this reason, mitigation professionals should focus their investigations on identifying perceived alternatives in situations held by defendants that might differ from those of other individuals raised in different social contexts. These structural limits on choices are often very confusing for jurors because they are asked to ignore these perceived constraints on choices and to adopt hypothetical alternatives that ignore the realities involved in actual social situations. This decontextualization of processes of choice in guilt determinations is inconsistent with key principles of the life-course perspective. The life-course perspective assumes that choices are not completely free because of the constraints of history and social circumstance. “Human beings become what they are at any given moment not by their own free decisions, taken rationally and in full knowledge of the conditions, but under the pressure of circumstances which delimit their range of choice and which also fix their objectives and the standards by which they make choices. (Shils, 1985, p. 805) Many capital defendants live in very difficult circumstances and are pressured within these circumstances to adapt to the conditions of severe poverty and crime in ways that are not accepted by the wider community. These adaptations were

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modeled by significant others in their environment, which places limits on what they typically perceive as representing appropriate alternatives. While the norms and other constraints in each of these environments do not determine a defendant’s response, they place important constraints on the stock of available options for constructing their eventual choices. This complex point is very important for jurors to understand because many offenders do not perceive not responding to threats to their barrio or neighborhood as a viable alternative. Persons of honor or good character within their environments are influenced by a different stock of beliefs and knowledge about appropriate ways of responding to these life challenges. While the purposes of their behavior are supported within their intimate relationships, they are not supported by the wider community. For this reason, jurors must be exposed to information about pressures and pulls in directions away from community-sanctioned choices that illustrate the constraints on freedom experienced by many offenders who are not as attached to conventional mores and practices as is true of the average person selected for jury duty. (These concerns will be discussed in more detail in Chapter 6 and Chapter 7.) The third principle of the life-course perspective involves the principles of time and place: “The life course of individuals is embedded and shaped by the historical times and places they experience over their lifetime” (Elder et al., 2004, p. 12). In the practice of mitigation, it is very important to examine the differential contributions of key social forces on the lives of defendants in different locations. For instance, the September 11th terror attacks had a different impact on Mexican-Americans raised in communities near the borders of our country than on Mexicans living in Chicago. They were also exposed to different forms of discrimination and surveillance by law enforcement in the Southwest following 9/11 than they would have experienced in these same communities at other periods of history. By examining differences in time and place, it is possible to determine important changes in a defendant’s biography of discrimination/racism or other similar concerns with implications for understanding their life choices and chances (Haney, 2004). Life chances refers to a technical term in sociology that involves the opportunities in a person’s social environment that influence their quality of life. Life-course theorists are interested in identifying risk and protective factors that are empirically associated with varying quality-of-life outcomes. Many capital offenders entered juvenile detention facilities and adult prisons when the characteristics of the populations in these institutions were witnessing major social and cultural changes that ought to be documented by mitigation professionals. These changes involve the emergence of new “politics” between racial and ethnic groups that play a very important role in shaping the offender’s criminal trajectory within the justice system. Today, there are many individuals who

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are pressured into joining their race for purposes of survival in prison that differ substantially from the kinds of pressures that existed in earlier periods of history when the races were segregated in different ways, and for different reasons from one another. Divisions between races have grown deeper in many of our prison systems, and individuals unaffiliated with gangs or other racial groups within the prison environment will find it virtually impossible to survive in some, but not all, prison contexts (Hagedorn, 2008; Yablonsky, 2005). The duty of the mitigation professional is to document these circumstances so that experts can assess the implications of these types of changes for an offender’s criminal history and behavior within a correctional system. This type of information is especially helpful in examining the life choices of offenders who are involved in prison murders or other forms of assault in a detention facility with a prisoner of another race. The fourth principle is timing: “The developmental antecedents and consequences of life transitions, events, and behavioral patterns vary according to their timing in a person’s life” (Elder et al., 2004, p. 12). Once mitigation professionals identify an important event in a person’s life, it is important for the investigator to obtain a cross-section of information about the effects of this event on the individual’s specific stage of development. For instance, the timing of a divorce in a person’s family can have differential effects on the children, depending on their cognitive and emotional stages of development. Similarly, disruptions in housing or separations from primary caregivers will have differential effects on youths, depending upon their chronological age and stage of development. The special contribution of the timing of an incarceration of one of the defendant’s parents is something often overlooked in assessments of a defendant’s life course. However, this type of event and the timing of the event can have dramatic effects on the defendant’s perceptions and coping strategies. An important axiom in mitigation practice is not only to document when exposure to adverse events occurs, but also to assess the duration of these events. Exposure to a single adverse event can have differential effects because of variations in the personal characteristics of the defendant, including their chronological age. For this reason, we need to document the consequences of this exposure. Some exposures have greater influence on future events than others, based on the timing of that exposure. We now know that exposure to adversity for long periods of time typically results in increased risks for various negative developmental outcomes. In addition, when adversities add up, there is an increased likelihood that they can have important cumulative effects that are also correlated with timing concerns. The timing of biological, psychological, and social events can have differential effects on many different life outcomes. The timing of exposure to physical abuse, violent role models, and to alcohol abuse during intrauterine phases

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of development (fetal alcohol syndrome) can help explain specific violent propensities and other aggressive trajectories. Timing refers here to individual time (ontogenetic time) or chronological age (see http://family.jrank.org/ pages/1072/Life-Course-Theory-Key-Principles-Concepts-html). There are established expectations for the timing of biological, psychological, and social events that are age-graded. When there are disruptions in expectations about these age-differentiated events, there are various causes and consequences that must be documented by the mitigation specialist, which is a central component of the mitigation investigation process. The fifth principle is linked lives: “Lives are lived interdependently and sociohistorical influences are expressed through this network of shared relationships” (Elder et al., 2004, p. 13). The principle of “linked lives” recognizes that a child’s trajectory is heavily influenced by the experiences and characteristics of the lives of other individuals who are involved in their life space. For instance, if a mother is experiencing a mental disorder, the loss of a job, a physical illness, or difficulties with her mate, each of these issues can have differential effects on a child, depending on the timing of when they occur. The choice to have a child also will have different implications for the parents, depending upon where they are in their own work and intimacy trajectories. In addition, their respective relationships with their own family members will have differential implications for the life-course of their own children as well as their own life tasks and challenges. Was your client’s mother still in early adulthood when your client went through adolescence, or was she in the mid-life stage of her development? Clearly, a mother will confront different issues and tasks during these different developmental periods. For this reason, it is important to assess in a mitigation investigation the nexus between the life of the defendant and other members of his social environment to obtain a better sense of how connections with others in his life are affecting his or her functioning. This relational component of the life-course perspective is a very helpful lens for guiding investigations of family relationships and their effects on the functioning of the defendant. They can help mitigation professional identify factors for why some members of a family experienced different life outcomes. The principle of linked lives and the other key principles in the life-course perspective are especially helpful for assessing various trajectories in the lives of capital defendants. The principle of linked lives often can explain why a turning point occurred in a trajectory of one child in a family based on factors affecting other family members in that family that facilitated this specific change in the course or direction of the defendant’s life.

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Trajectories and the Storytelling Processes

The mitigation team will choose to focus on providing a broader context to the moment in time associated with the defendant’s murder or on the contextual contributions to specific aspects of the defendant’s character or history. The chronology of the defendant’s life provides a description of key life trajectories, events, and the offender’s dispositional propensities. The hypothesis-testing portion of the process offers explanations of why events and experiences in the defendant’s life trajectory are the way they are. It offers explanations about the effects of biological, psychological, and social factors on specific manifestations in the defendant’s social history that can help the juror or other fact-finder understand the instant offense or the factors that influenced specific trajectories that the mitigation team will focus on in attempting to mitigate the offender’s sentence and/or moral culpability. Trajectory is a term that can be used by mitigation specialists to tell stories about relevant outcomes in a defendant’s life. It refers in the life-course sciences to a specific path or line of development that is followed by a person in reaching a specified life destination or outcome. Life-course theorists want to explain positive or negative life outcomes in terms of trajectories and transitions. Transition is recognized as a key concept in the life-course perspective because of the pivotal role that it plays in defining a person’s life trajectory. Transition is technically defined as a change from one state to another. When a line of changes in states occurs in an ordered sequence, this is technically defined as a trajectory. Each trajectory in a person’s social history is marked by an ordered sequence of events, roles, and transitions that are embedded within a specific life-domain or sphere of activity: work, marriage, parenthood, or crime (Ashford & LeCroy, 2010, 2013; Elder, 1991; Paternoster & Brame, 1997). For this reason, trajectories serve an important function in telling mitigation stories. We believe that mitigation professionals do not devote enough attention to describing the emergence and desistance of role and emotional trajectories in key segments of a defendant’s life. The same act of killing a person can be part of several different role histories or trajectories that make up a single act. The important question confronting the mitigation specialist is which story provides the best case for mitigation of the defendant’s culpability. We believe that the meaning and moral significance of the act can only be understood when the trajectory is connected in some meaningful way to the defendant’s identity. Each trajectory in a defendant’s life involves a different story with different motivations. MacIntyre wrote: The narrative of any one life is part of an interlocking set of narratives. . . . Asking you what you did and why, saying what I did and why, pondering the

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differences between your account of what I did and my account of what I did, and vice versa, these are essential constituents of all but the very simplest and barest narratives. Thus without the accounting of the self those trains of events that constitute all the simplest and barest of narratives could not occur, and without that same accountability narratives would lack continuity required to make both them and the actions that constitute them intelligible. . . . (1993, p. 243) MacIntyre illustrates an important point that is often overlooked in many mitigation stories. The role played by the self in committing the offense and in the defendant’s criminal history is what makes a good story; not so much the mere description of the crime or the defendant’s criminal history. Indeed, the history of being abused does not humanize a person as much as a story about how the individual perceived the abuse and how these perceptions influenced his/her responses to the abusive situation. The historical event of being abused becomes intelligible only when we can give an account of how the person’s self was affected. For this reason, mitigation teams must be able to identify for the jury the role of the defendant’s self in any narrative about the offense. In an earlier section of this chapter, we pointed out that the implementation of psychological formulations for organizing information collected is difficult for some mitigation professionals. Nonetheless, if the mitigation professionals systematically collect relevant data that is guided by an appropriate formulation, then they will be in an excellent position to understand the contributions of these themes in a defendant’s construction of a mitigating identity. Some of the questions that help identify relevant mitigation themes germane to the individual’s identity are: 1. Does the defendant trust others to provide needed emotional, social, and physical support? 2. What are the defendant’s thoughts about his or her ability to control himself and other aspects of his environment? 3. How does the defendant maintain a healthy sense of self-esteem in their social environment. (derived from Campbell & Rohrbaugh, 2006, p. 26) Each of these themes involves common identity struggles that can bring unity to understanding the criminal event and other life trajectories. There are specific struggles and challenges found in the lives of most murderers. These struggles need to be linked with common psychological and sociological themes in order to obtain a better understanding of their significance in the lives

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of our defendants. Specific struggles found in the lives of murderers from socially disadvantaged backgrounds include: • Dealing with one’s sense of masculinity (violence is a resource for “doing masculinity” and the other struggles associated with its realization) • A sense of a lack of agency or choice and the heroic struggle to resist theses constraints on life choices (barriers to opportunity or needed resources) • Living up to one’s “heroic image”; e.g., an identity of being fearless and/or the protector of intimate others from potential victimization • A principled offender who adheres to dilemmas of honor regardless of the personal cost • Justice or good achieved through violence In examining these themes, the aim is to obtain a sense of how the offender achieves a sense of identity through their crime and what is the plot or theme underlying this quest for identity. Their mitigation story should “have an evaluative point to make about the self” of the defendant that will mitigate the defendant’s moral culpability (Presser, 2008). For instance, I had a client whose record indicated that he was arrested for having illegal weapons at his nephew’s home. However, he told me a story of how he took the rap for this offense because his nephew had never done time and it would be much easier for him to do the time for this offense. In my client’s view, this story reflected his personal strength of character. This type of distorted sense of virtue often is linked with other misguided forms of honor that were learned in subcultural contexts that need to be explained by the mitigation team to members of a jury. Many killings are seen by their perpetrators as good, virtuous, or just responses to wrongs by others that are reinforced by the norms and values of the individual’s immediate social environment. A common story told by many violent offenders is about how they overcame “the struggle to avoid victimization in prison or in the streets” (Presser, 2008, p. 112). Many offenders are proud of how they meet the challenges of the streets, their neighborhood, or the prison. Understanding why they failed to resist the influence of the streets can be as informative as understanding how they accomplished not becoming a victim in prison by joining a gang. The defendant’s perceived obligations and struggles with these challenges against potential victimization and other aspects of the streets are often used in the stories of offenders to clarify their perceived moral character. The mitigation professional should not ignore these stories that offenders tell, because they offer many insights into the inner

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workings of how they go about constructing their self and how this self is associated with many events in the offender’s life history that can be part of the defendant’s mitigation story.

Summary

This chapter examined key components of the mitigation investigation process. In examining each of these components, we identified relevant formulations for collecting and organizing the biological, psychological, and social information needed in constructing a defendant’s mitigation story. These formulations are part of the scientific protocol used by most mitigation investigators in developing explanations of various aspects of the offender’s history and character. In addition, this chapter introduced key concepts and principles from the life-course perspective for guiding the development of the defendant’s biopsychosocial history. This theoretical framework can afford practitioners with important guides sought by many mitigation professionals in organizing their response to the complex forms of information associated with the development of a defendant’s chronology of issues, symptoms, events, and other relevant experiences. The chapter also demonstrates how the concepts of events, timing, transitions, and trajectory can help the mitigation team explain relevant life outcomes associated with specific mitigation themes. These concepts are the fundamental components of any mitigation story. Without knowledge of relevant role and other salient trajectories, it is not possible to build a story that can support the themes of attribution fairness that were described in the prior chapter. That is, it is important for members of the mitigation team to identify salient trajectories in a defendant’s life, but many of these explanations will require additional theoretical concepts in order to build relevant mitigation themes about issues of capacity, choice, and character. In summary, the life-course perspective affords mitigation professionals an excellent framework for guiding the data-collection process. This theoretical perspective is considered an unbiased approach to understanding important social fairness issues in an offender’s social history. It is also very consistent with legal assumptions about choice germane to our criminal justice system. However, the life-course perspective differs from legal approaches that do not recognize that many choices in a person’s life are not completely free. These constraints on choices are the primary contextual issues that mitigation professionals have a duty to explain to jurors and other relevant fact finders in capital cases.

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Case example I worked on a case as an expert witness in which the prosecution alleged that my client killed his former girlfriend to prevent her from being a witness against him for another crime. This defendant’s relationship with the victim had many different role histories and other relevant trajectories. My client was arrested for setting fire to his girlfriend’s housing prior to the murder. The offense resulted from a conflict between the defendant and the girlfriend’s teenage son. Because the conflict appeared to be escalating, the girlfriend called the police. When the police arrived, the girlfriend told the police that my client had no business in her home and she wanted him removed because of what he had done to her son. The girlfriend denied that he was living with her because she did not want to lose her Section 8 housing. After the girlfriend said this to the police, my client got very angry. He was upset because his girlfriend knew that he was on parole. The girlfriend’s action not only placed him at risk for being arrested for assault, but illustrated to my client that his girlfriend was placing the interests of herself and her son over his personal welfare. My defendant was drinking heavily prior to this conflict. After the police arrived, the officers asked my client to join them in another room of the home. The police knew my client and were planning to arrest him when he ran from them into another room. When the police attempted to enter the room, he started a fire and jumped out of another window in an effort to escape. His reaction was fueled by large quantities of alcohol that he had consumed on that day and his long history of impulsivity and various forms of emotional disturbance, including a significant propensity for engaging in reactive forms of aggression when he perceived threats either to his personhood or to any signs of rejection from significant others. If convicted of this assault, my client was going to receive a very long prison sentence because he was on parole. In the interim, my client was arrested for another offense and put in jail. While he was in jail, his girlfriend started dating my client’s brother. However, the ex-girlfriend wrote my client while he was in jail and told him that her relationship with his brother did not mean anything to her because “he was her only true love.” When my client was released on bond from jail, he did not interfere with his girlfriend’s relationship with his brother. A few days prior to the murder, my client learned that his brother and girlfriend went to his mother’s home and took a bed from the mother that my client and his ex-girlfriend had given to his mother as a gift. This incident involving his ex-girlfriend and his mother triggered a strong emotional response in my client, and he went to see his girlfriend about why she took the bed from his mother. This visit occurred on the day prior to the actual murder. Later in that same day, my client was observed by his other brothers, and they reported that he was drinking quite heavily and that he was very angry about what his brother and girlfriend had done. They reported that my client did not seem to be able to calm down after hearing about the bed. Their description of his behavior on the day prior to the offense was very consistent with his prior history of not being able to regulate his emotions.

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As you can see, this case involves a number of trajectories that illustrate how difficult it is to conceptualize a specific segment of behavior at a specific moment in time. What role or roles were influencing the defendant’s behavior in the commission of the murder? What was his motive during the murder? There are several plausible answers to this question: • Revenge for how his girlfriend minimized a valuable portion of their relationship • Jealousy • Elimination of the girlfriend as a witness because his trial was approaching • An impulsive response to comments that the girlfriend made that threatened his sense of self-esteem when he went to his girlfriend’s home Each of the prior scenarios is a possible answer to the question of what he did on the morning of the crime, but the story of what he did is difficult to tell without knowing his exact motives. Stories that can clarify reasons or motives for the crime are easier for most jurors to understand. Knowledge of the defendant’s motives is an important factor in assessing the moral culpability of the defendant, because motives are closely connected to a person’s identity and to the the moral dimensions of the person’s self. The prosecutor in this case focused on trajectories involving the upcoming case in which the girlfriend was going to be a witness, because it made a good story about the defendant’s character, while the defense focused on other relevant concerns and trajectories. Although there might be one central role that involved the primary motive for the offense, some of each of the prior role trajectories could have played some part in the actual actions of the offender. Christina Sommers and Fred Sommers wrote: Ideally, each human life is a unity. The meaning and ethical worth of any person’s act can be understood only as a part of the life story of that person. But a person’s history only makes sense in terms of the social and historical contexts that define his or her roles, expectations, and obligations. Because virtue is best understood in terms of the way one lives one’s roles in a narrative background of which is richly historical and traditional, teaching of virtue is best accomplished through stories. “Man is essentially a story telling animal,” and moral education is realized through narrative means. (Sommers & Sommers, 1993, pp. 237–238)

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In summary, mitigation professionals must provide some unity to conflicting trajectories associated with the psychological moment of the crime. By doing so, the mitigation professional is able to confront obstacles associated with the way the law partitions each human life into segments that are evaluated by highly specific legal norms and values that can abstract the individual’s background from their criminal actions. This segmentation or abstracting of the individual from his or her history reduces the analysis to specific sequences of individual actions involving specific episodes at a specific point in time that can make the unifying component of a human life invisible to its evaluators (MacIntyre, 1993). While this risk is higher in the guilt phase of a capital case, this segmentation of a specific moment in time should not take place in the penalty phase of a capital case. In the penalty phase of the case, the person’s identity and history must be connected to a relevant trajectory in the crime sequence that can either humanize the response of the offender or illustrate important continuities in human frailties that are due to factors outside of defendant’s personal control.

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moral and legal theories of capacity and choice play critical roles in assessments of criminal responsibility and moral culpability in many areas of criminal law (Tadros, 2007). In this chapter, we introduce self-control and social information processing (SIP) frameworks that can help practitioners in the analysis of mental and emotional processes germane to assessing issues of diminished rationality and diminished volition in death penalty jurisprudence. The “psychological moment” of a crime can be influenced by many different factors. The aim of this chapter is to describe some of the promising frameworks in the social science literature that can help mitigation professionals identify substantive differences in how defendants evaluate information and choose among subjectively available response choices. When a person loses control and acts unreasonably, this type of response has important implications for assessing the severity of the crime. Under retributive principles of justice, “a person should be punished to the exact degree of—that is, no more and no less than—the culpability of his crime” (Fontaine, 2009, p. 73). In ascertaining crime severity, mental processes involving degrees of mens rea (“guilty mind”) play a pivotal role in culpability judgments (Melton et al., 2007; Singer, 1986b). Cold-blooded killers rely on the use of instrumental forms of rationality that require some forethought, no matter how much reflection is involved 104

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in the formulation of the criminal intent. Increased levels of premeditation are typically associated with increased levels of criminal and moral culpability (Melton et al., 2007). Provocation is a doctrine in criminal law that allows for the mitigation of the severity of a killing from murder to manslaughter. However, some mitigation professionals are biased from pursuing relevant mitigation themes involving cognitive dysfunctions that can affect the control that reason ought to exert over a defendant’s actions. Indeed, some attorneys only focus in their investigations of provocation on emotional dysfunctions (Singer, 1986b). By doing so, they ignore the contributions of cognitive distortions that can impair a person’s capacity for practical rationality. Reid Griffith Fontaine (2008, 2009) has argued that this is an inappropriate interpretation and moral response to issues of criminal provocation. He wrote: the law makes a partial allowance for emotional dysfunction—the wrongfulness of the homicide is mitigated when the emotionally charged reactivity restricts the author’s capacity for rational thought and reasoned behavior. However, the defense makes no such allowance for cognitive dysfunction, despite the widely replicated finding in psychology that violent reactivity is associated with distorted cognitive processing. (Fontaine, 2009, p. 69) Even though Fontaine’s approach to cognitive provocation is not disallowed in the penalty phase of a capital case, it is rarely adopted to guide the selection and presentation of mitigation themes. Many lawyers do not take advantage of this inconsistency in the law’s treatment of issues of provocation when presenting themes of mitigation in penalty-phase deliberations. We want to address this (potential) oversight by demonstrating how self-control and SIP frameworks from the social sciences not only support differential accounts of provocation like those described by Fontaine and other scholars (Finkel & Parrott, 2006), but also provide general frameworks for structuring the presentation of proximal and remote forms of mitigation germane to issues of capacity and choice. This chapter begins with a brief overview of the law of criminal provocation. This review is followed by a brief examination of relatively recent developments in self-control theory that call into question a number of traditional ways of framing issues of choice and hostile (reactive) aggression. Next, the chapter provides a brief review of the SIP model of human decision-making processes. This review includes an examination of how the SIP framework can help practitioners identify dysfunctions in social cognitive processes and how these social cognitive

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processes interact with latent cognitive structures (attitudes, values, and beliefs), and non-conscious processes that are significantly influenced by a person’s social and cultural background.

Issues of Subjective Culpability in Provocation Law

Issues of moral culpability began to decline in Anglo-American jurisprudence during the nineteenth century. Prior to the nineteenth century, the criminal law of England and this country took seriously the requirement that a defendant could not be found guilty of an offense unless he had truly acted in a malicious and malevolent way—that he had not only “the” mental state for the crime, but that, more generally, he manifested a full-blown mens rea: an “evil mind.” (Singer, 1986b, p. 243) This requirement of establishing the mental state of any crime was replaced by an approach that relied on the use of objective criteria in determining a person’s criminal liability (Singer, 1986b). The upshot was the mental-state components of many crimes were replaced by definitions of crimes that included the crime’s level of malice. With this change in the law, juries were no longer required to make judgments about the defendant’s mens rea when establishing a defendant’ criminal liability, because the level of intent was included in the objective definition of the crime. The prior trend toward objectivity in establishing liability led to other developments in criminal law such as crimes of strict liability and the “reasonable person” standard. Crimes of strict liability did not require evidence of a criminal intent, and the reasonable person standard eliminated the need for jurors to inquire into the defendant’s subjectivity—his or her emotions and thoughts, and the role that they played during the commission of an offense. An individual’s actions were assessed in relation to the standard of what a reasonable person would do, rather than in terms of a defendant’s subjective thoughts or emotions. That is, the courts were not concerned with the defendant’s subjective perceptions of the provocation, but instead, with how a reasonable person would have reacted to a similar provocation. This change in provocation law eliminated the need for individualized assessments of the defendant’s own subjectivity (Finkel & Parrott, 2006). An earlier view of criminal law held that “culpability ought to be grounded on the moral blameworthiness of the act, and in this view, culpability must be sought and found on inner subjective ground” (Finkel & Parrott, 2006, p. 115). It is important to note that this viewpoint has witnessed a revival in some areas of criminal

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law (Singer, 1986b), including the sentencing of capital offenders. Mandatory sentences of death have been abolished in capital jurisprudence and guidelines instituted to allow juries to take into account issues of moral culpability that involve judgments about the defendant’s subjective thoughts and motivations. The predicate for this change was the neo-retributive rival in criminal sentencing that reintroduced the need for jurors to make “a reasoned moral response” to the defendant’s level of culpability (California v. Brown, 1987), including inadequate forms of criminal provocation. Prior to the development of the doctrine of provocation in Anglo-American jurisprudence, distinctions were not made between types of killings. In fact, most crimes were treated the same, regardless of differences in degrees of moral culpability. Forgers, murders, thieves, and rapists all received a penalty of death following a finding of guilt. This objective treatment of crime and punishment was replaced by a subjective approach that attempted to take into account degrees of moral culpability. “Prior to the beginning of the sixteenth century, the common law courts had little need to distinguish, as a matter of substantive law, between different kinds of killings” (Singer, 1986b, p. 249). The famous English jurist Edward Coke addressed this gap in the law by differentiating chance medleys from other types of homicides. A chance medley referred to a fight or brawl in which an individual killed another person. The suddenness of the killing during the brawl allowed for a reduced sentence because “a killing done ‘on a sudden’ or ‘by chance’ is done without premeditation’” (Singer, 1986b, p. 251). Indeed, the law needed a way of dealing with non-malicious forms of killing or slaying of another person that deviated from doctrines of self-defense following the abolishment of the doctrine of benefit of clergy during the mid–sixteenth century (Singer, 1986). “Benefit of clergy” was an early doctrine in common law prior to the twelfth-century that allowed for members of the “cloth” to escape a sentence of death for killing another person. In that period of history, the secular courts and the ecclesiastical courts had jurisdiction over different matters. Members of the clergy (priests or nuns) would claim a special status that would place them outside of the jurisdiction of the secular courts when they were accused of crimes against the state. The eligibility test for obtaining this special benefit involved appearing before a secular court to prove one’s status as a cleric. This proceeding typically involved the defendant appearing in clerical garb and demonstrating for the court that the defendant was able to read. During this period of legal history, the ability to read was the test employed in many jurisdictions to establish clerical status. At the time of this practice, clerics were among the few people who were able to read. However, this practice was eventually abolished because of abuses by clerics and other elites. After this

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practice was eliminated, the doctrine of chance medley replaced benefit of clergy as a mechanism for leniency in sentencing by introducing a new type of homicide into criminal law known as manslaughter. The evolution of the criteria for establishing cases of manslaughter Manslaughter was a criminal classification that differentiated a sudden homicide from a premeditated homicide. In other words, an initial criterion used to differentiate manslaughter from murder focused on the “suddenness” of a killing within a rapidly evolving situation. The situation presumably triggered a passionate response that interfered with the rational control that a subject ought to have over his or her behavior. In assessing sudden cases of homicide, a number of fact situations emerged in common law that led to the identification of other relevant criteria for differentiating manslaughter from murder. In Watts v. Bryes (ca. 1580; see Singer, 1986b), an English court examined the issue of whether a “wry facial expression” was a sufficient provocation for treating a homicide as manslaughter rather than murder. The court, in examining the facts of this case, observed that the defendant had been beaten by the victim two days prior to a subsequent encounter in which the victim made a facial expression that provoked the defendant to chase and stab the victim to death. In making a distinction between this case and other cases of manslaughter, the court concluded that the murder in Watts was not triggered by the victim’s wry expression, but by a prior beating that took place two days before the killing. This decision has been cited in a number of subsequent legal commentaries about the evolution of objective criteria for assessing adequate forms of provocation (Singer, 1986b). The timing of such provocations was another legal issue subjected to close scrutiny in differentiating manslaughter from murder (see, e.g., Maddy, 1672). In Maddy, the defendant was informed of his wife’s adultery, and he responded by telling others that he would kill the adulterer. Unlike in prior cases, the court assumed that the passion engendered by the knowledge of his wife’s adultery had time to cool. In this case, the court looked very closely at the time interval between the defendant’s declaration of intent and the actual killing. The court concluded after examining the facts of the case that the reason for the crime was vengeance and not a sudden response of passion to the information about the wife’s adultery. Indeed, most case law governing judgments about provocation relied upon an examination of “facts to distinguish between killings which had been ‘planned’ . . . or where there had been pre-existing hatred between the parties (Watts), and those where there was no such information” (Singer, 1986b, p. 259). Over the years, other factual situations helped uncover other relevant objective criteria for differentiating

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murder from manslaughter, including the elimination of what the courts considered trivial provocations. The issue of “trivial provocations” introduced the principle of proportionality into provocation law. That is, the level of force employed by a defendant ought to be proportional to the provocation. Initially, knowledge of adultery was considered a legitimate form of provocation. However, there were circumstances involving adultery that triggered additional forms of inquiry into how defendants obtained information about the adultery (Singer, 1986b). Another legal doctrine that provides additional insights into the complexities of some of the issues surrounding a mitigated defense of provocation is “the doctrine that ‘mere words’ will never rise to the level of sufficient provocation” (Singer, 1986b, p. 259). However, this doctrine and other objective criteria guiding the law of provocation developed without a clearly stated legal theory of provocation (Finkel & Parrott, 2006). As a consequence, exceptions to rules about provocation involving “mere words” and the emotional responses that they triggered were not uncommon in many jurisdictions. Similar problems involving other doctrines, such as the “cooling off ” doctrine, led to many inconsistencies in how the courts treated cases of provocation. Whenever a person had the opportunity or time to cool down, it was assumed that the person had committed a crime of murder rather than manslaughter. However, this doctrine contributed to disputes in an number of jurisdictions about the length of time between the provocation and the actual killing and indeed whether the interval was sufficient for the defendant to “cool off.” These disputes raised a number of important substantive debates in the legal literature about whether the time interval was an issue of law or an issue of fact (Ashworth, 1976; Singer, 1986). If it were a matter of fact, then the jury might need to inquire into the subjective elements of the connection between the time interval and the homicide (Singer, 1986b). However, if it were a matter of law, then the courts would defer to established rules about time intervals (e.g., the suddenness of the killing) and other relevant considerations surrounding the objective circumstances of the provocation. The courts also confronted law and fact issues in dealing with the “reasonable person” doctrine. Some juries were charged with assessing whether the provocation would have produced a similar “state of mind” in an ordinary person (Maher v. People, 1863, p. 221)—while other courts took a much more objective approach. These variations in approaches to issues of provocation were summarized in the following quotation by Singer. He wrote: By the mid–twentieth century, the majority of courts had adopted the rather rigid categories imposed on the provocation doctrine. . . . Examples of these rigid provocation doctrines included: mere words, unless informational,

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were insufficient provocation; a battery or chance medley probably was sufficient provocation; and the defendant must not have had a “reasonable time” to cool down. There were, of course, exceptions; some courts did not allow words, even insults, to be adequate provocation. A few jurisdictions defined “passion” to include “rage or anger,” or violent, intense, high wrought or enthusiastic emotion, and some included “uncontrollable fear.” The Texas Penal Code defined “adequate cause” as “[c]ause that would commonly produce a degree of ‘anger, rage, resentment, or terror’” in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. And some states gave brooders such as Gounagis a reduction, finding that a small spark, insufficient to activate “passion” as a general matter, might be the final straw on the camel’s back. (1986b, p. 287) Gounagis was a Greek immigrant who killed a fellow worker who had sodomized him, but the killing was not a sudden response to the actual sexual assault. Gounagis killed the victim after being taunted by fellow workers who learned about the sexual assault from the victim in the case. The negative treatment by fellow employees helped rekindle the pain of the prior wrong, which led to the defendant’s killing the victim as a result of a cumulative buildup of emotions. However, the Washington Supreme Court held in State v. Gounagias (1915) that it was legitimate to exclude the evidence of the mounting tension that had a cumulative effect on the defendant’s actions and rationality. This ruling was consistent with the objective doctrines of provocation, but other courts ruled in other ways in cases concerning a cumulative buildup of strong emotions that could interfere with a defendant’s rational control over his or her behavior. As inconsistencies mounted in implementing objective approaches to provocation, a turning point occurred in provocation law in the middle of the twentieth century. In England, a complex, subjective approach of provocation was reinstituted with the passage of the Homicide Act of 1957. However, the subjective approach adopted in this Act focused on the gravity of the conditions of the provocation and not the “peculiarities” of the individual’s disposition or self-control (Ashworth, 1976). That is, this Act broadened the inquiry in ways that made every aspect of the situation surrounding the provocation subject to jury scrutiny, but not the subjective differences in the defendant’s temper or emotions (Singer, 1986b). This distinction reflects a concern that some jurists held about including subjective differences that could favor persons with ill or bad tempers and allow them to escape a murder conviction (Singer, 1986b). The American Law Institute (1962) included a definition of provocation in its Model Penal Code that struck a similar balance between subjective and objective

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rules of provocation. However, the distinction that it provided about subjectivity took a different approach from that in England. It stated: a homicide which would otherwise be murder [is manslaughter when it] is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. (American Legal Institute, 1962, Section 210.3) Like the concept of mitigation in current capital jurisprudence, this definition of provocation “abandon[ed] preconceived notions of what constitutes adequate provocation to submit that question to the jury” (American Legal Institute, 1980, p. 61). However, many jurisdictions in the United States did not adopt this approach to provocation and instead maintained many of the elements of provocation established in common law practices. Inasmuch as the law of provocation has evolved substantially over the years, there is nothing in current capital jurisprudence to prohibit mitigation professionals from presenting a case of inadequate provocation involving subjective elements about ill temper or extreme emotional disturbance. That is, mitigation professionals are free to show that the crime was committed under the influence of an extreme mental or emotional disturbance that resulted in a loss of self-control, regardless of whether the provocation is objectively or subjectively adequate. For this reason, it is important for mitigation professionals to have some knowledge of current theories and frameworks for understanding emotional and cognitive factors that can interfere with a person’s use of reason in controlling behavioral responses. These frameworks can help the mitigation professional identify potential antecedents and other factors in a defendant’s background that are associated with widely recognized human frailties and other conditions that might contribute to the mitigation of problems of self-control or impaired forms of practical rationality. Theories of Self-Regulation and Self-Control

Baumeister (1996) contends that failure to self-regulate is one of the primary social pathologies of our times. People can destroy their lives and relationships with others by engaging in a wide array of irresponsible kinds of behavior. Self-regulation refers to: any effort by a human being to alter its own responses. These responses may include actions, thoughts, feelings, desires, and performances. In the

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absence of regulation, the person would respond to the particular situation in a certain way, whether because of learning, habit, inclination, or even innate tendencies. Self-regulation prevents this normal or natural response from occurring and substitutes another response (or lack of response) in its place. (Baumeister, Heatherton, & Tice, 1994, p. 7) Baumeister (2005) considers this capacity for self-regulation an important factor for differentiating humans from other social animals. In his view, “[h]uman evolution seems to have created a relatively new, more complex form of action control that corresponds to popular notions of free will” (Baumeister, 2008, p. 14). The free-will debate is a fundamental consideration underlying many folk theories of criminal responsibility and moral culpability. It is also an issue that has affected discourse in a number of philosophical and legal disputes about “irresistible impulses.” The response to an impulse has different implications depending on how the failure to regulate the response is viewed. Baumeister and Heatherton wrote: The question can be appreciated by considering two contrary images of self-regulation failure. Both of them depict a person who feels an impulse to act in a way that runs contrary to his or her normal standards of proper, desirable behavior. Self-regulation failure means acting out that impulse and thus violating the person’s standards. In one image, the well-intentioned person is overwhelmed by an irresistible impulse that no normal person could restrain. In the other, the person simply decides to give in to the impulse rather than go through the exertion and frustration that would accompany self-restraint. Thus, is self-regulation failure a matter of lazy self-indulgence (i.e., heedlessly giving in to temptation) or is it a matter of being overcome by powerful, unstoppable forces? (1996, p. 6) The way the prior question is framed involves a dispute about human capacities that cannot be easily resolved. Current science lacks the capacity to resolve this kind of philosophical dispute because good arguments can be made for each of these images of human behavior. Indeed “self-regulation failure is rarely a matter of deliberate, premeditated choice, but then again it is not often a matter of irresistible impulses either” (Baumeister & Heatherton, 1996, p. 6). For this reason, Baumeister contends that social scientists should not focus on the irresolvable concern of whether free will exists or not. Instead, social scientists ought to focus on documenting how and why some acts are freer than others (Baumeister, 2008). To this end, it is helpful for mitigation professionals to have some knowledge of

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the feedback-loop model of self-regulation described by Carver and Scheier (1981, 1982). Their model has been expanded upon by Baumeister and his colleagues because it offers helpful guidance in differentiating between types of self-regulation failure; e.g., problems with under-regulation and problems with misregulation (Baumeister, Heatherton, & Tice, 1994; Baumeister & Heatherton, 1996). Under-regulation and misregulation failures The first ingredient in Carver and Scheier’s (1982) model is standards. Standards refer to the norms, ideals, goals, or other expectations that guide any system relying on complex processes of self-regulation. “Without clear and consistent standards, self-regulation will be hampered” (Baumeister & Heatherton, 1996, p. 2). Many defendant’s in capital cases are socialized in environments that include goals and ideals that are in conflict with the desires and expectations of the broader community. In some cases, they are not even exposed to relevant standards for making appropriate life decisions (Litton, 2005). The distorted ideals and standards in which they were socialized play an important role in how they act. Moreover, many capital defendants can experience moral conflicts because of their membership in groups that are isolated from the broader society’s supporting institutions. This isolation allows for the emergence of different standards and goals for behavior that are institutionalized and passed from one generation to the next (Hagedorn, 2008). Gangs are an excellent example of subpopulations that are at risk for these types of conflicts because they have developed affinities for values and norms with supporting mythologies and other forms of institutional support that help maintain the continuity of these groups and ideologies over time (Hagedorn, 2008). Many individuals who are members of neighborhood gangs develop animosities towards individuals from other neighborhoods that were cultivated by key role models and institutions in their immediate social environment that conflict with the laws of mainstream society. The “life worlds” (Lebenswelts) and experiences of these gang members introduce distinct forms of social pressure that can promote involvement in violent actions that are considered justifiable by key figures in their social environment. Other conflicting norms or moral codes with other types of institutional support (e.g., cultures of violence and cultures of honor) are also associated with various forms of regulation failure commonly found in current mitigation practice. However, not all forms of self-regulation failure are due to problems with conflicting standards. Many self-regulation failures involve processes of under-regulation that are associated with biological states that affect the second key ingredient in the feedback-loop model of self-regulation failure, viz., self monitoring. Some

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examples of biological states that can influence a person’s capacity for self monitoring failure are alcohol consumption, extreme emotional disturbances, neurological impairments, and other mental health conditions that can interact with alcohol or other types of stimuli in ways that lower the threshold for igniting extreme emotions that can interfere with self-reflective mechanisms that play an important role in self-monitoring processes. This form of emotional reactivity involves a technical process in psychiatry and neurology known as “kindling.” Kindling refers to any process that sensitizes the brain or other relevant systems to ignite very easily or at very low thresholds, including highly specialized behavioral response patterns that often operate at automatic or habitual levels. Some kindling complications are due to congenital abnormalities. Others are due to environmental insults or other forms of trauma that, in combination with environmental stresses, will enhance a person’s arousal level or other relevant systems associated with behavioral and emotional forms of reactivity that are not easily inhibited by a person’s self-control processes. The duty of the mitigation specialist in working with problems of this nature is to document a defendant’s history of having a low threshold for reactivity, with or without the presence of environmental stimuli, that can enhance or accelerate a defendant’s potential for emotional reactivity. The monitoring phase of self-regulation failures in the feedback-loop model occurs when the person compares himself/herself to standards. That is, people are expected to monitor themselves in relation to relevant standards. “Keeping close track of one’s actions and states is often vital to successful self-regulation, and so when people cease to monitor themselves they tend to lose control” (Baumeister, 1996, p. 2). In many instances, problems of under-regulation can be traced back to processes that interfere with a person’s capacities for self-monitoring. For instance, a person who is intoxicated is less likely to attend to the self or relevant standards in responding to environmental stimuli. Similarly, a person with neurological impairments that can increase someone’s vulnerability to experiencing kindling effects is less likely to attend to relevant standards for guiding his or her behavior. Brain maturation processes are also relevant in assessing self-monitoring capacities; and knowledge of these processes has helped reform how the courts view adolescents in current death-penalty jurisprudence. Adolescents are now considered less able to control their behavior than adults because they have mechanisms in their brain that are not fully developed. The reactive aspects of crime can also be explained by other, equally compelling theories. Some of these theories involve elements that are consistent with the third ingredient in the feedback-loop model of self-regulation failure—the operate phase. In this phase of the model, a process ought to be set in motion to bring the

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self back into compliance with the person’s standards. Once a person reflects on an action in relation to a relevant standard, then the person will need to override the actions affecting noncompliance with the identified standard. However, a breakdown can occur at this junction in the process, because the person does not know how to bring about the necessary change. Indeed self-regulation failure is likely in spite of the presence of clear standards and effective monitoring, “simply because the person is unable to bring about the desired change” (Baumeister, 1996, p. 2). There is a wide variety of reasons why and how this particular phase can contribute to regulation failures, including individual differences involving biological, psychological, and social factors. With knowledge of these individual differences, practitioners are in a better position to identify relevant constraints upon a person’s response options. Chapters 7 and 8 review in greater detail the significance of how variations in a person’s background can influence, not only the development of response options involving key social motivations, but also the factors influencing the development of the person’s self or character, and how the self and character influence a person’s evaluation of available responses. “Certain responses are set in motion, either by innate programming, habit, or motivation—and self regulation involves a response that is initiated by a combination of latent motivations and activating stimuli; self-regulation is a matter of interrupting that response and preventing it from running to its normal, typical outcome” (Baumeister, 1996, p. 2). In our view, Baumeister’s prior quotation provides an excellent summary of the substantive issues confronting mitigation professionals in developing mitigation themes of diminished volition and diminished rationality. It also captures many of the substantive differences in perspectives on emotions identified by Finkel and Parrott (2006). These two psychologists examined how mechanistic and evaluative perspectives on emotions contribute to different legal theories of culpability: objective and subjective approaches to assessing culpability under conditions of provocation. They wrote: The first view is mechanistic, whereas the second is deliberative, rational, or controllable, though Kahan and Nussbaum (1996) called it “evaluative.” Both answers start the heat-of-passion process in the objective world, where a provocation occurs, and thou both root the origin of the process in the interpersonal rather than intrapsychic. But the similarity ends there, for the mechanistic and evaluative theories generate very different psychologies. In a mechanistic account, a provocation arouses the same emotion in different people. In this fungible view, the provocation is all we need to know to predict the aroused emotion and the a actions that likely will follow—for the

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“average person”—although the predictions might not hold for any particular individual. In a mechanistic view, then, the character of the person and the person’s evaluations recede into insignificance, leading to an objective account without a subjective assessment. The evaluative theory by contrast, leads to a subjective account, which is likely to be highly variable across individuals, because this account will be deeply influenced by the individual’s evaluations and character. (Finkel & Parrott, 206, p. 12) In order to capture the variability in the character and evaluations of individuals, mitigation professionals should have some familiarity with frameworks that will facilitate their assessment of individual differences in how emotions are connected to their evaluations of social stimuli and response alternatives. With a subjective approach to issues of provocation in mind, we now turn our gaze to identifying relevant frameworks and controversies in the social science literature for assessing subjective contributions to reactive forms of violence and aggression.

Current Controversies Surrounding Existing Self-Control Dichotomies

The legal literature has maintained long-standing distinctions between premeditated and impulsive homicides. In 1794, the Pennsylvania legislature established an important change in social policy that introduced a distinction in legal culture between first–degree and second–degree murders. First–degree murder involved premeditation, and for this reason it was considered more severe than sudden forms of murder. These sudden or impulsive murders were eventually reclassified in Pennsylvania (and in some other states) as second–degree murder. However, this trend in homicide law was criticized because many sudden or impulsive crimes could be even more “diabolically cruel” than crimes committed as a result of “malice aforethought” (Stephen, 1883). For instance, “[a] man passing along the road, sees a boy sitting on a bridge over a deep river and, out of mere wanton barbarity, pushes him into it and so drowns him” (Stephen, 1883, p. 94). In other words, sudden homicides can be seen as just as severe or morally culpable as premeditated homicides. Today, many states have eliminated the distinction between first and second degree murder. The Model Penal Code (American Law Institute, 1962) did not establish a distinction between first and second degree murder, but it did maintain the classification of “voluntary manslaughter.” The voluntary manslaughter classification maintains a distinction for sudden murders, but these intentional killings must occur while under the influence of an extreme emotional disturbance.

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This distinction maintains an important feature in homicide law that allows for mitigation of the punishment of persons while “in a heat of passion.” However, this distinction of law is not without controversy because of different views about the best ways to categorize homicides and because of emerging views in the social science literature about automatic and controlled styles of information processing (Bushman & Anderson, 2001). Evolving conceptions of aggression and self-control The distinction in the law between murder and voluntary manslaughter still is not without controversy following the policy reforms of the 1960s. There are still concerns about differentiating reasonable from unreasonable provocations, continued disputes about the length of time it takes for a person to cool off, and moral questions about provocations that cause a person to brood and plan revenge. In addition, some commentators have focused on concerns involving a distinction between persons who kill out of anger caused by a serious provocation that results in a motive of revenge, and persons who kill because of an instrumental motive, such as killing someone to obtain money from an insurance policy (Bushman & Anderson, 2001). Just as legal commentators have disputed how to differentiate between murder and manslaughter, social scientists have had comparable disputes about how to best differentiate between types of aggression. A long-standing distinction has existed in the social science literature between hostile and instrumental forms of aggression. “Hostile aggression is ‘hot,’ impulsive behavior that is motivated by a desire to hurt someone; instrumental aggression is ‘cold,’ premeditated behavior used as means to some other end” (Bushman & Anderson, 2001, p. 273). However, scholars are now contending that this dichotomy needs to be replaced because the criteria used in establishing these distinctions have not held up under close scrutiny. The three major factors that traditionally differentiated between hostile and instrumental aggression include: (1) differences between the primary goals of hostile and instrumental aggression; (2) the presence or absence of anger in the act of aggression; (3) the degree of aforethought or planning involved in the aggressive act (Bushman & Anderson, 2001). Without a doubt, the goal of harm was given primary status in differentiating hostile aggression from instrumental aggression because the primary motive (goal)

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of the perpetrator in hostile forms of aggression is to harm the victim. However, it is not easy to assign a primary purpose or a goal to a crime because many crimes involve mixed motives or goals. For instance, an individual can attempt to harm someone with the instrumental goal in mind of reestablishing the perpetrator’s self-esteem (Tedeschi & Felson, 1994). Anger as a criterion for differentiating hostile from instrumental forms of aggression has been subjected to similar criticism because it is typically assumed that killings motivated by anger are always hostile and not instrumental, but some planned murders are committed for the purposes of revenge and can be appropriately classified as an instrumental form of aggression (Bushman & Anderson, 2001). In addition, the boundary lines between planned and impulsive acts are not always as bright as they might initially seem. Moreover, many crimes cannot be classified as hot or cold, but fall along an emotional continuum with differential degrees of thought, planning, and emotion involved. Bushman and Anderson (2001) considered the Columbine shootings a perfect example. They wrote: The Columbine High School massacre illustrates the difficulties that arise when aggressive acts are categorized as hostile or instrumental. Harris and Klebold were repeatedly angered and provoked by the athletes in their school. Their planning of the massacre, however, was elaborate; the time frame for the planning was more than a year, they did research on weapons and explosives, they made drawings of their plans, they conducted rehearsals, and many of their overt behaviors during the shootings were probably automatic and overlearned. Was this an act of hostile or instrumental aggression? (Bushman & Anderson, 2001, p. 275) In Bushman and Anderson’s (2001) view, the focus of concern in investigations about aggression ought to shift from determining whether the crime is hostile or instrumental to adopting a new framework based on a “knowledge structure approach.” However, many statutes still rely on various forms of instrumental motivation in defining statutory forms of aggravation.

The Knowledge Structure Approach to Aggression

The knowledge structure approach to aggression assumes that complex decisions and emotional actions can be made either automatically or with careful thought, but the way the information is processed in making these complex decisions should not be treated as polar opposites (Bushman & Anderson, 2001). Instead, the informational processing approaches in these actions ought to be treated as

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a continuum with varying mixtures of automatic and controlled features. Indeed, there are very few behaviors that can be validly categorized as either purely automatic or purely under a person’s control (Wegner & Bargh, 1998). Most human interpretations of persons and situations involve some automatic features, and most actions (including aggression) involve a mix of automatic and controlled processes (Moskowitz, 2005). Current research suggest that controlled behaviors have the following features: “(a) conscious intention of what the control will accomplish, (b) a sense or feeling of control, (c) an expenditure of effort in the control action, and (d) a (closed loop) monitoring of the control output” (Bushman & Anderson, 2001, p. 275). Any behavior that lacks anyone of these features can be considered, “in part,” automatic (Bushman & Anderson, 2001). However, like controlled behaviors, automatic behaviors are not an all-or-none construct because complex decisions and actions also consist of different degrees of automaticity. Some of the specific features used in identifying automatic behaviors include that they: (a) were initiated without conscious intent; (b) cannot be stopped from occurring once initiated; (c) are extremely efficient; and (d) can take place without the person’s knowing that the process is occurring (Moskowitz, 2005). In many circumstances, the mitigation professional can help identify features commonly associated with automaticity because there are few behaviors involving issues of provocation that would not involve some form of automaticity. By framing the problem in this way, the practitioner can help a member of the jury see how much control was actually involved in a decision and why the subject in the case had a difficult time choosing an alternative response—what could be termed a “hard choice” or “difficult choice” condition of mitigation that ought to be taken into account when assessing the defendant’s culpability. Automatic processes are involved both in “preconscious perceptual categorization” and in “skilled behavioral enactments” (Bushman & Anderson, 2001; Wegner & Bargh, 1998). The two types of knowledge structures that involve these automatic processes are schemas and scripts. Each of these knowledge structures offers mitigation professionals useful constructs for guiding their presentation of relevant forms of proximal and remote forms of mitigation. The term schemas refers to mental representations or clusters of knowledge about a specific social category or social stimulus that is stored in a person’s memory. As an example, categories “contain typical features, traits, and behaviors believed to be common among a group of people; these are partially based on our experience with specific people from the group, but those specific people do not need to be part of the representation” (Moskowitz, 2005, p. 154). For instance, if you encounter a gang member, then this experience will activate knowledge structures stored in your memory

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about this social category. The category stimulates a structure that represents the network of information about persons within that category that will be processed along the automatic controlled continuum of information-processing strategies. Many interpretations of situations and people do not involve a person trying to size up her impressions of others in conscious or intentional ways (Moskowitz, 2005). Individuals can automatically develop impressions of people in some contexts, but in others, they will employ varying degrees of consciousness and/or control. By allowing for the existence of an automatic-controlled continuum, the knowledge structure framework takes into account the broader array of automatic processes involved in reactive forms of aggression that might be ignored when a simple dichotomy is applied in its stead. We now know that goal-oriented actions often rely on automatic information-processing strategies. “For example, people may have the explicit goal not to think of others in stereotypic[al] ways, yet it seems for most people the very opposite occurs when they encounter a member of a stereotyped group” (Moskowitz, 2005, p. 91). Automatic processes are also likely when people intend to do something that requires consciousness, but they lack awareness that the response has occurred (e.g., dialing a number that has been repeatedly called in the past; Moskowitz, 2005). The two prior examples represent what is referred to in the cognitive literature on automatic-information processing as postconscious automaticity (Moskowitz, 2005). This form of automaticity differs from preconscious automaticity because preconscious automaticity includes the processes that are initiated by mere exposure to a stimulus (Bargh, 1989). In preconscious forms of automaticity, the person lacks a conscious intention to perceive or respond in a specific way. This form of elicited behavior is more widely attributed by laypersons to automatic forms of information processing. That is, most members of a jury will have less knowledge of post-conscious forms of automaticity that are likely to underlie many of the forms of violence and aggression commonly encountered in mitigation practice. This potential oversight should not be missed by mitigation professionals when examining behaviors involving goals that were reinforced by the circumstances of a defendant’s unfortunate formative environment. Scripts, on the other hand, involve a different type of knowledge structure from that of schemas. Scripts are “knowledge structures that contain information about how people (or other objects) behave under varying circumstances” (Bushman & Anderson, 2001, p. 277). They involve specific if–then considerations that specify what types of responses are required under specific conditions. For instance, “If there is a row of cash registers at the front of the restaurant, then you go up and order food there rather than sitting down and waiting for a waitress” (Moskowitz, 2005, p. 162). Similarly, scripts will specify how an individual needs to respond to

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taunts or other challenges to one’s masculinity in front of one’s peers. Scripts are the knowledge structures that people are expected to evaluate before acting, but some of the scripts have important automatic features that vary across individuals, depending upon their social background and other past experiences. People learn schemas and scripts that are connected with multiple networks of categories and concepts with important implications for the automatic controlled continuum. When scripts are activated, they can trigger automatic responses that have varying levels of skills involved, including skills for competently implementing aggressive solutions to various types of social problems. Thus, the knowledge-structure approach offers mitigation professionals a useful framework for assessing provoked acts because it does not conflate types of aggression with styles of information processing (Bushman & Anderson, 2001). We now know from a substantial body of empirical evidence that many different types of knowledge structures can become automatic. Automatic actions occur when a person is not aware that any cognitive processes are taking place. The person relies on implicit forms of memory that are associated with unconscious processes outside of his awareness. For instance, after acquiring significant experience in dialing a specific telephone number, a person can eventually dial that number without engaging in conscious control over his dialing behavior; he can also drive a car while attending to another task without focusing per se on his driving behaviors (Moskowitz, 2005). These automatic forms of behavior have triggered scientists’ interest in understanding the activation of other kinds of automatic processes, including activation of automatic impressions of situations and persons, as well as the automatic activation and pursuit of behavioral goals (Bargh, Gollwitzer, Lee-Cai, Bardollar, & Trotschel, 2001). “The fact that automatic, nonconscious processes are the direct cause of action (e.g., Libet, 1985, 1999) seems now well established and has dealt a severe blow to some theories of conscious free will” (Baumeister, 2008, p. 15). Bargh and colleagues (2001, p. 1014) have demonstrated “that goals can be triggered outside of awareness and then run to completion, attaining desired outcomes.” Their research has implications for shifting attention from strictly focusing on issues of emotion in mitigating aggressive processes to examining the effects of latent knowledge structures on the activation of automatic processes involved in the pursuit of violent behavioral goals. Latent knowledge structures are made up of attitudes, beliefs, and values that are stored in a person’s long-term memory (Fontaine, 2007). Many youths are exposed to situations that activate well-learned and reinforced aggressive response patterns that are stored in their memory. These response patterns are not easily overridden once they become habitual, regardless of how they are set in motion.

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Factors influencing the control of habitual forms of behavior A common effect observed in many habitual forms of behavior is that at certain points some behaviors cannot be easily stopped. Typically, this effect is most likely to occur in the early phases of any action or behavior. It involves a psychological process that has features that are quite similar to the now-discredited physical law of inertia (Baumeister & Heatherton, 1996). Inertia occurs when an object is set in motion and it becomes resistant to change. Baumeister and Heatherton (1994, p. 4) wrote: [T]he longer a response has gone on the more inertia it seems to have and hence the more difficult it is to override. This theoretical principle is not new (indeed, the Zeigarnik effect involved the principle that interrupting an activity becomes more strenuous as it nears its completion) but its importance for understanding self-regulation has been neglected. Indeed, it is easier to not eat chocolate at all than to stop eating chocolate after a few bites. Fontaine (2007) has applied this principle to understanding addictions in his formable critique of disease approaches to alcoholism and other addictive forms of behavior. His viewpoint is widely shared by others who have called into question many assumptions about folk-psychological conceptions of irresistible impulses (Rachlin, 2000). In their view, the interruption of some goals become harder at certain points and will vary depending upon variations in individuals and settings (Rachlin, 2000; Heyman, 2009). That is, the capacity for controlling aggression will vary, not only at different points in the decision process, but also as the value of the behavior changes because of changes in the person or situation (Heyman, 2009). Clinical scientists have extended the findings from principles from the cognitive sciences in order to design interventions that can reduce problems with self-control. The upshot is that they now devote substantial attention to trying to interrupt the first stages of a response sequence, because at these stages, the levels of control required tend to be less than after a person gets further along in any response sequence. For this reason, “[m]ost models of the cognitive control of behavior begin with attention because noticing something is by definition the first stage of information processing” (Baumeister & Heatherton, 1994, p. 4). These models have important implications for mitigation practice because they can help in identifying factors associated with the initial stages of a response sequence that are activated by either unconscious eliciting stimuli or biased mental operations that were caused by factors outside of a person’s personal control.

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The capacity for self-control can be diminished by other factors besides the point at which self-control is initiated. Information-processing steps In the first stages of information processing, there are several important cognitive dysfunctions that practitioners should focus on because of their association with provocation interpretational biases (PIBs) (Fontaine, 2008). Fontaine wrote: [T]he first two steps of SIP—encoding and interpretation of cues—have been most closely linked with reactive aggressive behavior. Empirical studies have demonstrated that reactive aggressive individuals are more likely to both encode (perceive) negative aspects of social cues and attribute hostile meaning to incoming social information in ways that promote aggressive activity. For example, individuals who are biased in favor of perceiving neutral faces as angry and perceiving ambiguous provocation situations as intentionally hostile and harmful are more likely to demonstrate patterns of reactive aggressive behavior. This combination of cognitive processing difficulties has been called provocation interpretational bias (or PIB). (2008, p. 249) Provocation interpretational bias is a form of cognitive dysfunction with important significance for addressing issues of practical rationality. Diminished rationality is as important of a mitigation concern as diminished volition. However, mitigation professionals have devoted insufficient attention to uncovering social history evidence that demonstrates how defendants have developed these interpretation biases. With knowledge of these biases, mitigation professionals are in a better position to introduce mitigation evidence to members of the jury about a form of cognitive dysfunction that can reduce a defendant’s capacities for practical forms of rationality. Fontaine wrote: PIB can mean that the reactor is unable (or at least substantially less able, compared to others) to interpret ambiguous provocation situations as anything other than substantially provocative—that is, the defendant who has committed a reactive homicide may have been unable to not make a mistake of fact as to the provocative nature of the social stimulus, even though his or her mistaken interpretation of provocation may indeed be deemed unreasonable (and thus fail the reasonable-person standard). . . . A cognitive bias in its extreme form may stem from, or act as, an actual deficit in processing in that the person’s operating may be so distorted that he or she is literally unable to otherwise process information. In this way, extreme PIB has the

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psychologically restrictive effect of literally preventing one from adequately processing information and making valid attributions as to the meaning of social stimuli. (2008, pp. 248–250) The other phases of the SIP model also have implications for developing different types of mitigation themes. Remaining steps in the SIP framework We have focused our attention thus far on the first two steps in the SIP framework: (1) encoding of cues (internal and external); (2) interpretation of cues (attributions of intent, motive, and causality) (see Crick & Dodge, 1996). Now we will turn our attention to the next three steps in the SIP framework. For Step 3, the focus is on the clarification of goals (selecting goals or desired outcomes). In this step, the goal selected is not free from the influence of a person’s social and cultural background. Many people live in what Manuel Castells (1998) described as the “multiple black holes of social exclusion” that exist in many of our urban ghettos. People who live in these worlds of social exclusion are “systematically barred from access to positions that would enable them to have an autonomous livelihood in keeping with the social standards and values of a given social context” (Kendall, 2011, p. 285). As a consequence, they adopt goals that are consistent with the value systems that govern life in these isolated and well-defended social spaces (Hagedorn, 2008). Some of the reasons why they adopt these goals have important implications for developing themes with links to other remote forms of mitigation, such as exposure to significant domestic and community violence, a history of physical or sexual abuse, and other adverse or hazardous conditions. As previously noted, the selection of goals can become relatively automatic, depending on the person’s database of past experiences. That is, examining the defendant’s past experiences plays an important role not only in understanding activating processes, but also in understanding processes involving his selection and evaluation of goals and behavioral responses. Step 4 occurs when the person attempts to access potential responses to immediate social demands based on data stored in the his memory. (However, it is important to note that the person can also construct a new response in step 4 to emergent situations.) At step 5, the person evaluates the response that he was able to access from his memory. Step 5 is labeled the “response decision” step in Crick’s and Dodge’s (1996) reformulated SIP framework. It involves all of the mental processes that can influence the person’s selection of a response to social cues. Fontaine and Dodge

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(2006) provided additional clarity to step 5 by advancing the “response evaluation decision” (RED) framework. This framework assumes that: response options first have to pass a primary threshold of acceptability. This decision step acts as a crude filter by which behaviors that are clearly irrelevant or infeasible may be quickly selected for behavioral enactment. Responses that pass the initial threshold of acceptability and are not immediately behaviorally enacted may be considered across further evaluative domains. (Fontaine, 2007, p. 19) These other evaluative domains include information-processing strategies involving judgments about the response’s efficacy, and a valuation of the response in normative or moral terms. That is, response efficacy involves the person’s making a judgment about whether the behavioral response will lead to the person’s desired outcome(s). Response valuation, on the other hand, occurs when a person evaluates a response in terms of relevant social and moral qualities (Fontaine, 2007). “The responding individual may ask him[-] or herself if the type of behavior being considered matches who he or she self-identifies [with] as a social actor and moral agent” (Fontaine, 2007, p. 19). In other words, a person can subject a response to one or more evaluative domains, but the more domains involved, the greater the levels of reflection. Many responses are not subjected to more than one domain in many circumstance when the social situation demands an immediate response (Fontaine, 2007). Hence, the SIP model assumes that individuals come to situations with a set of limited capacities and a database of past experiences (Fontaine, 2007, 2008). The database of past experiences and capacities influences their interpretations of stimuli, selection of goals, and evaluation of potential responses. A fundamental aim of the social history investigation is to identify potential factors in the person’s history that are connected with how the defendant interpreted relevant social cues, selected goals associated with the instant offense, and influenced the defendant’s evaluation of potential behavioral responses or scripts. For this reason, the identification of mitigation themes must not be limited to examining the presence or absence of biological incapacities. That is, the mitigation inquiry must also focus on the connection between the person’s past experiences and the presence of deficits in the person’s selection of goals and evaluation of response options. The documentation of deficits in script selection will point to differential themes for mitigating the killings by many individuals who grew up in unfortunate formative environments. Their experiences in these corrupted environments can lead to

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many different types of scripted forms of impulsivity, including violent or aggressive forms of impulsivity. Scripted impulsivity refers to “an individual’s tendency to access and enact a cognitive script that has been both mentally and behaviorally rehearsed across repeated experiences” (Fontaine, 2008, p. 26). As a consequence of extensive forms of exposure to violent kinds of scripts, certain forms of provocation will lead to highly constrained choices and response options. There is another form of impulsivity that is significantly influenced by a person’s background—value-based impulsivity. This form of impulsivity occurs when a person does not consider a behavioral option because it is inconsistent with the person’s values or perceptions of himself as a moral agent. (Chapter 7 will focus on a number of different circumstances that influence the development of an identity that increases the likelihood of a person’s implemention of value-based forms of impulsivity that are in direct conflict with the values of the wider moral community.) This is an important form of social mitigation that is often ignored by some mitigation professionals because they rely primarily on the development of mitigation themes involving problems of impulsivity that stem from strictly biological forms of impairment. Moral luck is another factor that can contribute to various forms of impulsivity that involve remote forms of mitigation. This important moral consideration will be examined in greater detail in Chapter 7. A current bias exists in current mitigation practice about strategies for addressing threats to voluntary choices. Many practitioners are much more likely to appeal to disease models as explanations for extreme forms of impulsivity. Diseases are typically considered conditions that are outside of a person’s voluntary control. As a consequence, disease metaphors are also key components of many folk psychologies and other forms of conventional wisdom about factors that can interfere with processes of self-control. However, this image of threats to voluntary behavior can activate biases against equally relevant models of impulsive forms of behavior. For instance, addictions are often conceptualized as diseases that involve compulsions that make it difficult for individuals with this form of medical condition to not consume various types of drugs. However, this conceptualization of addiction has been challenged by a number of social scientists (Heyman, 2009; Rachlin, 2000). The scientists who have raised some interesting questions about the addictions and other habitual behavior problems adhere to cognitive approaches to self-control that conceive of self-control as a limited resource. These strengths or ego-depletion models assume that self-control is a limited resource that can be depleted. Baumeister and his colleagues (1994) found in their evaluation of the self-control literature that self-control “appeared vulnerable to deterioration over time from repeated exertions, resembling a muscle that gets tired” (Baumeister et al., 2007, p. 351). Many individuals from disadvantaged backgrounds are exposed

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to far more challenges requiring the use of this limited resource in adhering to prescribed societal norms. This is very important because if a person is having to exercise far more resources to adhere to the norms and the ideals of the wider moral community, then she is at increased risk of not having sufficient resources to resist the activation of aggression or other untoward responses to troubling factors in her social environment. Evidence in support of this hypothesis is mounting in the literature for many behavior problems, including violent behavior (Baumeister et al., 2007). This approach is referred to in the cognitive literature as the strength-based perspective on self-control. Strength-based perspectives on self-control offer mitigation professionals a useful tool for framing difficulty-of-choice concerns. In particular, it affords mitigation professionals an opportunity to take into account the effects of potential resource depletions on the monitoring and the operate phases of the feedback-loop model of self control. It also can capitalize on recent developments in neuroimaging that can capture deficits in regions of the brain that can further exacerbate problems associated with the monitoring and the operate phases of self-control. “In neurocognitive terms, the anterior cingulate cortex (ACC) is involved in monitoring problematic processing and behavioral occurrences (van Veen & Carter, 2006), whereas the dorsolateral prefrontal cortex (DLPFC) is involved in instantiating cognitive control in a goal-directed (rather than habitual) manner “(Kerns et al., 2004; Lieberman & Eisenberger, 2005; and see Robinson, Schmeichel, & Inzlicht, 2010, p. 1991). That is, neuroscientists are also capable of measuring differences in automatic-controlled circuits in the brains with implications for making a case for a type of automaticity associated with many different types of problems found in cases of diminished culpability, including cases in which the defendant’s resources have been significantly depleted by extremely adverse social conditions.

Summary

This chapter introduces readers to the SIP framework and how it supports existing social-science models of self-control relevant to assessing reactive crimes of violence. In addition, the model provides useful guidance for linking the remote life experiences of capital defendants to violent choices and actions. It also provides a generic framework for developing hypotheses to explain fundamental constraints upon a defendant’s volitional capacities based on either biological or social cognitive deficits, or a combination of both. Moreover, the elements of the SIP and self-control frameworks described in this chapter are useful for framing both proximal and remote themes of mitigation. While the primary focus of this chapter has been on describing concepts and

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phases in each of these frameworks with utility for addressing crimes resulting from provocations or other types of activating social cues, the framework also provides practitioners a structure for connecting remote life experiences to an offender’s instant offense. In addition, it offers practitioners a useful structure for connecting social-history data with the development of cognitive biases or other distortions with implications for assessing their rational understanding of social cues and response options. We believe that the social science frameworks described in this chapter represent a significant form of foundation knowledge for practice as a mitigation professionals. Without solid grounding in theories of self-control and social information processing, mitigation professionals risk not giving due weight to explanations of human behavior that play a key role in a defendant’s understanding of his behavior and his ability to conform his behavior to the requirements of the law. I have selected the case of Don Eugene Harding to illustrate the potential utility of the frameworks and concepts described in this chapter. He was convicted of killing two men in Arizona in a highly disorganized and violent fashion. I believe this case is an excellent one for training, because it can allow practitioners to discuss and debate the best ways of going about framing his mitigation story.

Case example The case of Donald Eugene Harding offers mitigation professionals an excellent opportunity to examine potential themes of mitigation for a person with a long history of under-regulation and misregulation failures due to impairments in his biological status and history of social-information processing deficits. Donald Harding was born on March 1, 1949, at home in the rural town of Goodrich, Arkansas. His local doctor arrived one and a half hours after his birth because of car trouble. Donald was delivered at home, by his father and his mother’s sister, with his umbilical cord wrapped around his neck. He had jaundice after his birth, and this condition lasted for two or three days. Dr. Jonathan Pincus, chair of the Department of Neurology at Georgetown University, considered these events in Harding’s history risk factors for brain damage when he evaluated Don in 1990 for one of Don’s post-conviction appeals. Several clinical evaluations completed on Don Harding during his childhood and during the early phases of his adolescent stage of development indicated that he had a severe seizure disorder. He also was diagnosed very early on in his history as having an organic-brain syndrome with behavioral complications by numerous doctors. Organic-brain syndrome is no longer a classification that is included in the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association. This diagnosis has been replaced by another diagnostic classification that captures similar abnormal patterns of behavior that were evident in Don Harding’s medical

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and social history. For instance, his organic brain syndrome could be reclassified today as a “personality change disorder due to the general medical condition of a temporal lobe seizure disorder, aggressive subtype.” Donald Harding had other brain-related issues in his history besides his well-documented seizure disorder. As a baby, he fell on his head from his bed. He also was involved in an accident in which a swing hit him in the head near his eye when he was around four years old. He was rushed to the hospital for this accident and was given stitches to close a deep wound above his eye. Don was also knocked out on three different occasions over the course of his life. One of the incidents involved being knocked out with a stool during a barroom fight. Others occurred while he was in prison. In addition, he had a number of scars from other assaultive episodes, including a blow from an ax handle. His history also included several broken noses. One of these occurred when he fell off of a bridge onto his face while engaging in very risky activities with friends. Others came from fights while in prison that were promoted by the convict guards for their personal entertainment. While in school, Don had a number of cognitive and behavioral deficits that were well documented in a variety of different school records; e.g., inability to concentrate, restlessness, chronic truancy, lying, picking fights, defiance, and hyperactivity. Don reported on interview that he was disruptive in class because his “mind would not work right.” When asked what did he mean, he said: “There are days when I just can’t get my mind to produce. I can’t say the right words and just can’t think right” (Ashford, 1990). Don was first referred by a school nurse to a Child Guidance Center in Little Rock, Arkansas, in 1957. However, his mother did not follow up on this referral. He was eventually seen in 1960 at this Child Guidance Center for “constant truancy, won’t do school work; left suicide note that he was going to jump in the river; said that when his throat gets dry people seem small and far away, expressed desire to kill and choke people.” He was given a diagnosis at that time of an adjustment reaction of childhood manifested by truancy, aggressive and recalcitrant behavior—contributing factors: parental neglect—no supervision, and chronic brain syndrome—unknown cause, with behavioral reaction. However, this was not a transitional problem as is commonly seen in adjustment reactions, but instead, a long-standing problem that continued over the course of his life. The perceptual distortions contained in this quote (experiencing a dry throat and seeing people as being small and far away) are also symptoms commonly found in persons suffering from brain-related impairments. Psychological tests administered at various phases of his development also provided evidence that he had various types of mild organic indicators, including wide scatter among ability areas on several IQ tests, which is often associated with the presence of organic problems. Two psychological evaluators also opined on two different occasions that there were strong organic determinants to many of his uncontrollable forms of behavior. These specific reports were completed at the hospital. He was referred to the hospital because he was involved in impulsive aggressive acts

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while he was incarcerated in the juvenile justice system in Arkansas. Don was also seen by Drs. Hawley and Westerfield at the Arkansas State Hospital following several aggressive incidents in the adult facility where he was incarcerated that resulted in a placement at the Arkansas State Hospital. He was 18 years old at the time. Each of these mental health professionals commented on his severely depressed expression. Dr. Hawley wrote that he “had the face of a chronically depressed person,” which can be associated with a form of emotional viscosity due to some form of brain dysfunction (Ashford, 1990). Emotional viscosity refers to the deepening of emotional responses that develops after puberty in individuals with brain damage (Ashford, 1990). When I interviewed Don Harding, I observed him go into a deep form of emotional viscosity after I asked him some questions about his bedwetting history. At this point in the interview, Don went into such a state of apathy and non-responsiveness that I had to terminate the interview. The stare that he had in his eyes and the level of psychomotor retardation that he showed in this episode and other contexts suggested that he could be diagnosed today as having a personality change disorder but with a “combined” subtype because, in addition to the aggressive features, he also presented with a history of significant depression, and he was known to shift quickly from agitation to depression. Indeed, Don Harding had a history that was replete with documentary evidence of a persistent personality disturbance that was consistently linked with a variety of different brain abnormalities. In addition, his history had other relevant associated features that could not be overlooked because of their association with features in the crime scene for which he was sentenced to death. Don’s history contained a well-documented pattern of experiencing deep remorse and guilt following many of his explosive episodes. This aspect of his social history is very important because it involves a well-known feature seen in persons with brain damage or serious brain dysfunctions. Persons with brain impairments are much more likely to have remorse for their aggressive outbursts than are individuals with an antisocial personality disturbance. I especially found this aspect of his history remarkable because of its connection with a number of his actions following his arrest for the murders in Arizona. Don Harding escaped from the Pulaski County jail in September of 1979 where he was being held on a charge of murder. While he was on the run, he committed three murders that had features very similar to those of another robbery that he committed in Texas. The victims in each of these crimes were bound tightly and had cloth stuffed in their mouths. However, this was where most of the similarities between the two crime scenes ended. The two victims in Pima County were killed in a very disorganized way, and the victim in Texas was not killed or physically assaulted in any way. There was something else at the crime scene in Pima County that was worthy of further comment and scrutiny. After he completed the murders, Don placed pillows under the victims’ heads and arranged their bodies in ways that suggested that he was trying to comfort them in some way after he had assaulted them in an extremely violent manner. This specific type of behavior is not commonly observed

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in most homicides, especially in what are considered highly disorganized murders. The victims were assaulted and killed in a way that suggested that the murders were committed by someone who was in a “fit of rage” or some other form of emotional dyscontrol. However, he took great pains after the murder to arrange the bodies in a way that could have had implications for developing mitigation themes. The attorney general in Don’s post-conviction case focused on another aspect of Don’s post-crime behavior not involving the careful placement of the bodies. Don went to the home of one of the victims, but did not do anything to anyone at the home. He went to the door asking for one of the victims, but did not force entry or say anything that suggested negative motives. Yet the attorney general in his case considered his presence at the home evidence of extreme malice. Clearly the family was incensed by this behavior after they learned that the person who came to the home looking for the victim had in fact killed the victim. Another factor contained in his history following the crime that is worthy of comment involves comments that he made when he was transported from where he was arrested back to the jurisdiction where the crime was committed. One of his transporting officers remarked about how cold it was at the airport when they were escorting him to the plane. One of the officers offered to give him his coat, but Don refused and said, “I deserve this for what I did.” This information was used against him, as well as the information about Don’s going to the home of the victim after the killing. However, these factors are associated with alternative explanations of these behaviors based on other information in his social and medical history. Although Don’s crime could be attributed to his brain dysfunctions, the reactive aspects of his crime can also be explained and supported by other, equally compelling, theories. Some of these theories involve elements that are consistent with the third ingredient in the feedback-loop model of self-regulation failure—the operate phase. In this phase of the model, a process ought to be set in motion to bring the self back into compliance with the person’s standards. Once a person reflects on an action in relation to a relevant standard, then the person will need to override the actions affecting noncompliance with the identified standard. However, a breakdown can occur at this junction in the process, because the person does not know how to bring about the necessary change. Indeed, self-regulation failure is likely in spite of the presence of clear standards and effective monitoring, “simply because the person is unable to bring about the desired change” (Baumeister, 1996, p. 2).

The case of Don Harding contained elements suggesting that Don had propensities toward aggressive outbursts that could be attributed to activating stimuli that would lower the threshold for the onset of these outbursts that were fueled by his brain damage or seizure disturbance. However, he also had a history that supported the presence of latent motivations associated with habitually learned aggressive responses that were not only observed, but reinforced by his habitual

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enactment of aggressive solutions to various threatening conditions in his social environment at each and every phase of his development. Don Harding had a very distorted, as well as a very corrupted, life history that probably biased his evaluation of the actions of the victims in his case, as well as his response alternatives. His unfortunate formative environment included exposure to domestic violence; brutal child maltreatment and neglect; and repeated exposure to torture, rape, and sexual slavery over an extended period of time while he was incarcerated at the Tucker prison in Arkansas. He was sent to Tucker after being arrested in California for running away from the Boys Industrial School in Arkansas. When he entered the Tucker prison, he was 16 years old, 5 feet 7 inches tall, and weighed 120 pounds. While he was in prison, he was subjected to severe abuse and torture from both the inmates and the convict guards. This prison was characterized in Hutto v. Finney (1978) as “a dark and evil world, completely alien to the free world.” This was the very world that Don needed to survive in while he was incarcerated there. He was also subjected to other indignities, including exposure to the “Tucker telephone.” Namely, the staff used an older version of a crank telephone to send an electrical charge to the genitals of inmates, including Don Harding, as punishment. The guards also administered this punishment as a form of entertainment. In addition, Don’s social history contained evidence of attribution biases, which in all probability increased the likelihood of his engaging in aggressive solutions to social problems. For instance, there is a clear example of this that was captured in a summary comment from the Child Guidance Clinic where he was evaluated as a child. The summary states: “He . . . tries constantly to pick fights—even when a child asks to be left alone, Don will reverse the meaning to ‘Nobody’s gonna tell me what to do’” (Ashford, 1990). Research derived from social information processing models has shown that youth with cognitive biases about the motivations or intentions of others are at increased risk for engaging in aggression to solve social problems. Crick and Dodge (1996, pp. 993–994) wrote: According to social information processing models, children’s social behavior is a function of sequential steps of processing, including encoding of social cues, interpretation of social cues, clarification of goals, response access or construction, response decision, and behavioral enactment. Crick & Dodge, 1994; see also Dodge, 1986; Dodge & Crick, 1990; Dodge, Pettit, McClaskey, & Brown, 1986). Skillful processing at each step is hypothesized to lead to competent performance within a situation, whereas biased or deficient processing is hypothesized to lead to deviant social behavior (e.g. aggression).

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Clearly Don’s long-standing propensity to interpret stimuli in biased ways was exacerbated by the brutality and inhumane conditions that he was exposed to during his various periods of juvenile and adult incarceration. Don also lacked exposure to normal and non-threatening social interactions with members of the wider normative community, including his parents and stepfather. His childhood history is replete with examples of severe abuse and neglect. Mitigation professionals often encounter clients with complex backgrounds like Don Harding’s. His case raises a number of challenging questions about Don’s behavior and involvement in the crimes for which he was eventually executed. Was Don’s behavior in his capital crimes an impulsive or sudden offense that is best explained by (A) his brain disorder—a serious factor contributing to his ability to monitor his emotions and behavior; (B) his unfortunate background, which affected the “operate phase” of his self-control processes; or (C) a combination of both? Many evaluators would probably conclude that the answer is probably C, but arriving at an answer to this question, whether the answer is C or any of the other responses, is only the first step in the mitigation process. The mitigation team also faced other equally compelling issues in developing their mitigation themes, including the role played by Don’s ill temper or character in making a case for his life. The next chapter focuses on social science and philosophical arguments that can be applied to cases involving defendants with bad characters and other negative dispositions. Many complicated cases with multiple dimensions can trigger conflicts among members of a defense team when the various professionals involved in the process attach too much pride to their own way of framing problems and behaviors. Even though a single framework might be sufficient to illustrate a specific theme of mitigation, the team has to evaluate whether the introduction of other frameworks can enhance or detract from the overall story of mitigation. In Don’s case, the mitigation evidence presented in his post-conviction appeals did not rely on the social-information processing and self-control frameworks described in this chapter. Aspects of his nightmarish background were described in his post-conviction appeals, but the approach taken by the defense team did not rely on the frameworks reviewed in this chapter to structure the presentation of the mitigation evidence. These frameworks offer practitioners a three-dimensional approach to framing issues of diminished rationality and choice that would go beyond a strictly biological explanation of Don’s response patterns. They would also allow for the framing of Don’s culpability in terms of degrees rather than as absolutes. Barbara Hudson wrote: [A]cceptance of situations such as self-defense and various forms of physical coercion, shows that for law culpability involves an act not only having been

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done, but having been done from choice. Whereas legal theory has paid much attention to responsibility, however, it has paid scant attention to choice. (1999, p. 584) We also believe that legal theories have devoted insufficient attention to issues of choice and freedom in sentencing contexts. For this reason, we will focus in the next chapter on other social concepts and theories that provide further insights into how choices by offenders can be severely constrained by other socially relevant circumstances that need to be brought to the attention of jurors and other sentencing authorities. These frameworks assume that because “freedom of choice in an unequal society is necessarily a matter of degree and is unequal between agents, the extent to which they are to be blamed—and therefore punished— should reflect these differences and inequalities” (Hudson, 1999, p. 585).

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Assesing Character, Criminal Propensities, and Sociocultural Deprivation

homicide is a crime that is recognized universally as one of the most serious criminal offenses. Although there are many different grades or types of homicide, some persons “of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible, and inhuman’” (Godfey v. Georgia, 1980, p. 420). However, it is assumed in current death-penalty jurisprudence that the death penalty should be reserved for the “worst of the worst” offenders. Death-penalty jurisprudence assumes that the death penalty is “qualitatively different” from other punishments (Abramson, 2004). In identifying individuals for this ultimate punishment, jurors are expected to weight aggravating and mitigating evidence in making their life-and-death decisions. Does the jury focus in its penalty deliberations on the extraordinary nature of the crime or on the extremes of the offender’s motives or character? Some murders are considered aggravated and warranting death based on who was the victim: a police officer, a child, an elderly person, a correctional officer, and other aggravated circumstances involving the type or vulnerability of the victim(s) involved in the offense. The number of persons murdered and the amount of suffering experienced by the victim are also factors that can lead to judgments that the crime should not be considered ordinary. The amount of deliberation associated with the commission of the crime, and the lack of feelings for the victim are additional factors that can lead to the conclusion that the murder is especially heinous and thereby warrants a sentence of death. 135

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Paul Ebert, the chief prosecutor in the District of Columbia sniper case of John Allen Muhammad, indicated in a number of interviews why he believed Muhammad was unlike most of the drug or domestic crime offenders he had prosecuted previously for murder. In his view, the level of calculation involved supported the pursuit of the death penalty. In addition, Ebert’s assistant in the case said, “The death penalty is pretty much reserved for the worst of the worst and John Allen Muhammad pretty much qualifies in spades” (Conway, 2009 retrieved on August 2, 2012, from http://www.cnn.com/2003/LAW/11/17/sprj.dcsp.muhammad.trial/index.htm). Clearly, John Allen Muhammad was deemed by the prosecutors involved in his case as not being an ordinary murderer. When some states reinstituted capital punishment, prosecutors also selected defendants to restart the process who they deemed were poster candidates for the death penalty. Some examples that come to mind are Robert Alton Harris in California and Don Eugene Harding in Arizona. In each of these cases, there was more than one victim, and the prosecutors in these cases implied that the defendants engaged in extremely evil acts that they enjoyed out of some perverse form of motivation and satisfaction. Each of these defendants also had histories of prior criminal activity. For this reason, these cases are excellent candidates for examining hypo-deductive methods for testing social hypotheses that are designed to humanize each of these individuals. They also are cases that rely on remote forms of mitigation in making a case for life that can be discounted if the mitigation evidence is not framed in appropriate ways. The purpose of this chapter is to review conceptual frameworks from the social science and moral development literature that can aid practitioners in humanizing the history and character of individuals like Robert Alton Harris. In doing so, we will be open to criticisms about whether social scientists should be involved in aiding the courts in understanding notions of moral culpability and dangerousness (Slobogin, 2007). In addition, we will confront some of the other concerns that have emerged in the psychiatric literature about identifying measures of evilness and depravity (Knoll, 2008; Stone, 2009; Welner, 2009). Many of the philosophical quandaries surrounding the roles played by emotions, character, and identity in assessing degrees of moral culpability are also contentious subjects that mitigation professionals encounter when their goal is to humanize the motivations and the character of offenders with extensive criminal backgrounds. If the case for life does not make persuasive moral or scientific arguments, then defense teams are unlikely to prevail in the penalty phase of an aggravated case of murder. Deprived backgrounds and criminal propensities can be grounds for mitigation, but many practitioners are often ill equipped for presenting relevant arguments in support of remote forms of mitigation involving social and cultural forms of deprivation. Current sociocultural theories of character formation

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are consistent with many of the moral arguments that mitigation practitioners can make in presenting mitigation evidence about a defendant’s criminal history, motivations, and character. They also provide a useful foundation for investigating repeated forms of violence and crime that are unfairly attributed to an offender’s character. For this reason, this chapter reviews current developments in the moral development literature that support principles from the philosophical literature that can mitigate the unfortunate formative backgrounds of capital defendants.

The Relationship Between Moral Character and Crime

When I first began my forensic practice, the current boundaries in mental health assessments between personality and character disorders were not maintained in either theory or practice. The first edition of the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-I) relied heavily on assumptions and principles from psychoanalysis about character disturbances. During this period of history, many psychoanalytic theorists differentiated between character neurosis and symptom neurosis. Persons with symptom neurosis were considered impulsive in ways that differed from persons with character neurosis. For instance, it was assumed that persons with symptom neurosis were likely to engage in uncontrolled compulsive behaviors that appeared senseless and ego-dystonic; whereas the character neurotic was considered an impulsive character with behaviors that were both sensible and ego-syntonic (Reich, 1925). The asocial, antisocial, and dyssocial personalities were viewed in the first edition of the Diagnostic and Statistical Manual (1952) as character disorders. With the publication of the DSM-II (1968), however, the dyssocial personality disorder was re-classified under the heading “Social Maladjustment without Manifest Psychiatric Disorder” (Dyssocial Behavior, 316.3), and the “asocial personality” was eliminated from diagnostic considerations. By the time the DSM-III (1980) was published, the earlier distinctions about personality and character disorders went out of favor in most non-psychoanalytic circles. The disorders described in this new edition of the manual for the DSM treated all traits involving enduring qualities of a person as “personality disorders,” including disorders that were characterized primarily by moral qualities or characteristics. The upshot was many practitioners stopped making distinctions between personality and character disorders. In addition, dyssocial disorders of personality were now subsumed under a V code—“Adult Antisocial Behavior V71.01” (“V codes” refer to “other conditions that may be the focus of clinical attention”) (APA, 2000, p. 731).

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Moral overtones associated with personality classifications The prefix “anti-“ refers to something that is in opposition to something. The cause of such opposition was neither identified nor described by the authors of the DSM-III for “antisocial personality disorder.” It is interesting to note, however, that the developers of the International Classification of Diseases (ICD) chose to adopt the prefix “dis-“ to apply to a similar diagnostic category that included a broad range of variations in abnormal forms of conduct and personality that were comparable to the American Psychiatric Association’s diagnostic category of the antisocial personality disorder. Dis- means “not” or being “apart from” something, and the dis in dissocial signifies being separate or apart from society. A fundamental issue that has plagued the use of the “antisocial” label has been the moral overtones associated with this diagnostic category that cannot be ignored by mitigation professionals (Million, Simonsen, & Morton-Birket Smith, 1998). The value of employing clinically neutral approaches to describing enduring patterns of delinquent behavior was addressed by a number of early psychiatric commentators (Birnbaum, 1909; Bursten, 1972; Healy & Bronner, 1926; Patridge, 1930; Reich, 1925) since the British alienist J. C. Prichard (1835) formulated the diagnostic category of moral insanity. “Although [Prichard] accepted Pinel’s notion of manie sans dé lire, he dissented from Pinel’s morally neutral attitude toward these disorders and became the major exponent of the view that these behaviors signified a reprehensible defect in character that deserved social condemnation” (Millon et al., 1998, p. 5). Prichard’s viewpoint is still prevalent in current classifications of personality disorders, in that the antisocial personality disorder maintains a prefix that is associated with significant moral overtones. The DSM-V will maintain the “antisocial” label, but some thought was given for this edition to include the psychologically based category of psychopathy. Assumptions about character in criminal sentencing The law has maintained views about character, in various sentencing contexts, that are consistent with the Aristotelian theory of virtue. We hold offenders liable for their character primarily because their choices and their actions are a reflection of defects in their character (Duff, 2002). Inherent in this assumption is the view that “we are liable for our choices, character traits, or vices on condition that they lead to or are revealed in criminal action—something that constitutes the actus reus of an offense” (Duff, 2002, p. 156). This nexus between action and character raises a number of complex issues in philosophy about the definition of moral character. Nonetheless, many virtue theorists assume that differences in tendencies or dispositions to engage in moral actions are due to differences in people, rather than

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differences in knowledge of what is considered right and wrong (Nucci & Turiel, 2000; Turiel, 2006). At the crux of most disputes about moral character is the unavoidable issue of how to characterize the relevant differences in people that mark their characters. Is it their “bag of traits,” their reasoning qualities, their moral sense, or some aspect of their self or identity? Aristotle assumed that the cultivation of habits of emotion, deliberation, and action that are consistent with virtue were the aims of moral education (Doris, 2002). However, his views of the nature of virtue and what ought to constitute the character of virtuous individuals have not been uncontroversial. Many philosophers have adopted behavioral accounts of virtue that assume that character is an enduring and stable behavioral quality that reflects one’s underlying virtues. However, others have focused their attention on aspects of Aristotle’s definition of character that involve a stable disposition or established quality toward making decisions about what would be appropriate action in a given situation. Each of these interpretations assumes the presence of a defining attribute that guides a person’s deliberations and actions, which is an assumption that is becoming more and more controversial in the current social science literature (Lapsley, 2008). Lapsley, for instance, assumes that it is the self (or moral dimensions of the self) that is the attribute that is the relevant moral quality that should be involved in any assessment of a person’s moral character or agency, and not a specific deliberative capacity. I first encountered the need to understand the issue of character in performing court-ordered evaluations for the criminal justice system while employed at an Ohio court clinic. Trial courts in Ohio would refer offenders for mental health evaluations pursuant to statutory questions involving ordinary probation, conditional probation for drug treatment, and other sentencing options. Members of our agency would complete a social history and administer relevant psychological testing before holding a staff meeting about relevant referral questions. During this period, the Ohio state legislature deemed dangerous and repeat offenders ineligible for probation or other treatment alternatives in lieu of traditional penal sanctions. For this reason, the courts referred individuals for mental health assessments to determine whether offenders seeking special benefits of treatment, like conditional probation for drug treatment, had any conditions that were evidence of the defendant’s dangerousness or risk of recidivism (Ashford, Sales, & Reid, 2001; Ashford, 1988a, 1988b, 1987, 1986). A dangerous offender was defined in Ohio at this point in time as “a person who has committed an offense, whose history, character, and condition reveal a substantial risk that he will be a danger to others, and whose conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless

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indifference to the consequences” (Swisher, 1978, p. 4.10). Under section 2929.01 of the Ohio Revised Code, any offender who was diagnosed a “psychopathic offender” was considered a dangerous offender “without limitation” (Swisher, 1978). In order to address these statutory concerns, our agency focused on identifying the presence of serious mental conditions and disturbances of personality that increased a defendant’s risk of being a danger to others, including assessments of whether the individual was a psychopathic offender. The definition of repeat offender for sections 2929.01 to 2929.51 of the Ohio Revised Code was: “Repeat Offender means a person who has a history of persistent criminal activity, and whose character and condition reveal a substantial risk that he will commit another offense” (Swisher, 1978, p. 4.10). This definition implied that the focus of the clinical evaluation should be on identifying the presence of predominant qualities of character or condition of personality that are evidence of the defendant’s potential risk for continued involvement in criminal forms of behavior. Besides mental health evidence, these statutes included examples of prima facie evidence of a person who is a dangerous or a repeat offender. Examples of prima facie evidence included factors like: having been convicted of two or more types of crimes (violent, sexual, drug, or other felonies) and a history of imprisonment for the two prior offenses (Swisher, 1978, p. 4.10). These examples rely on consistent patterns of behavior without regard to issues of character or condition. In the legal arena, character can play many different roles in many different decision-making contexts. When I was performing these court-ordered evaluations in Ohio, Black’s Law Dictionary contained different definitions of character, including “The aggregate of the moral qualities which belong to and distinguish and individual person” (Nolan & Connolly, 1979, p. 211). In many respects, this definition is comparable to many definitions of personality—with the important difference that “character” ought to focus on moral qualities that define the person. This definition is also consistent with some virtue theories of character and early definitions of character disorders. Another definition of the concept of character contained in that edition of Black’s Law Dictionary defined character as: “That moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him” (Nolan & Connolly, 1979, p. 211). In fact, when I sought counsel from a legal practitioner about the use of the term character in these statutes, the attorney proffered the ladder and indicated that character had nothing to do with the presence of personality or character disorders because the statute is referring to the form of moral character that is typically provided by character witnesses. In his opinion, the statute was asking

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for consideration of the presence of personality disorders in addition to consideration of the person’s history and character in assessing an offender’s eligibility for statutory benefits of treatment. Nonetheless, my forensic agency treated the character issue as if it were equivalent in significance to the presence of a personality disorder. Moreover, members of the clinical staff associated the presence of a personality disorder with a risk of recidivism or dangerousness. Most attorneys today have had minimal exposure to disputes about character in the legal or philosophical literature, let alone disputes in the scientific literature. Nonetheless, most folk theories of character have adopted arguments about attributes possessed by individuals that mark them as dangerous, good, or bad, based on observed consistencies in their behavior. This view of moral character comports with traditional approaches to moral education, which have been widely disputed in the moral development literature (Blasi, 1993; Nuicci, 2000; Power, 1997; Turiel, 1978) and in the experimental social psychology literature (Darley & Batson, 1973; Doris, 2002; Milgram, 1974; Zimbardo et al. 1973). The social psychologist Doris wrote: Like many others, I find the lore of virtue deeply compelling, yet I cannot help noticing that much of this lore rests on psychological theory that is some 2,500 years old. A theory is not bad simply because it is old, but in this case developments of more recent vintage suggest that the old ideas are in trouble. (2002, p. ix) I also believe that the current ways that character traits or virtues are being applied in many areas of criminal law are troubling, especially in sentencing processes involving capital cases. For this reason, I assume that it is important for mitigation professionals to have some background about outdated views of character that can result in inappropriate attributions of character to defendants in capital cases.

Criminal History and Culpability Considerations

Repeat offenders present interesting quandaries about punishment, which did not influence sentencing practices until utilitarian approaches to punishment developed in response to problems attributed to the application of retributive principles of punishment (Whitman, 2005). The focus shifts in utilitarian views of punishment from principles of proportionality, or desert, to principles of crime control. Most early retributive approaches to criminal sentencing focused on the seriousness of the offense without taking into account the moral character or the

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life experiences of the offender (Whitman, 2005). In Chapter 2, we examined how issues involving the offender’s character entered criminal-sentencing processes. We will now shift our examination of character to an investigation of the legitimacy of considering criminal history as a proxy for culpability and character in criminal-sentencing processes. There are many different types of life experiences that are deemed relevant to selecting an appropriate punishment. For instance, many states consider a prior conviction for a violent crime a statutory aggravator in capital cases. In addition, recidivist premiums are widely recognized as pivotal components in the Federal Sentencing Guidelines, as well as in several states’ determinate sentencing systems. These guided approaches to criminal sentencing assume that repeat offenders are more culpable than first-time offenders (Roberts, 2008). This assumption often goes unchallenged by mitigation professionals in capital cases because defense counsel might not want to expose jurors to the circumstances surrounding the offender’s history of prior violence. These prior crimes can trigger prejudicial or biased responses to the offender in favor of death (Nadler & McDonnell, 2012). However, there are many circumstances in which mitigation practitioners have no available option but to challenge the unexamined assumptions about sentencing factors involving criminal history and dangerousness that are raised by prosecutors to justify the selection of a sentence of death. Criminal history is a sentencing factor that warrants close scrutiny by mitigation professionals because of the significant role that it can exert “in expressing the conscience of the community as to whether an individual has lost his moral entitlement to live” (Abramson, 2004, p. 119). The legal and criminological literature has devoted substantial ink to examining the role of criminal-history factors in selecting punishments under retributive principles of justice because criminal history ought to be considered an anomaly in most just-desert approaches to criminal sentencing (Durham, 1987; Roberts, 2008). Rappaport wrote, Like traditional offender characteristics, such as employment history and family background, criminal history has no direct relationship to the offender’s current offense of conviction. Yet, unlike these other offender characteristics, it is thought by the [Federal] Sentencing Commission to be highly relevant to the sentencing decision. Why? One explanation is that, in the case of most offender characteristics, sentencing purposes such as just deserts and crime control point in opposite directions. An abusive childhood might suggest that an offender poses a greater threat to society, but that same factor is also thought to make a person’s criminal activities more “understandable” and, hence, less culpable.

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Depending on the favored purpose, then, family circumstances could serve as either a mitigator or an aggravator at sentencing. Faced with this conflict of purposes, the [Federal] Sentencing Commission essentially compromised and made most offender characteristics “not ordinarily relevant” in the sentencing process. [However], criminal history is different, or at least the [Federal] Sentencing Commission thought so. It suggested that the “collision” between sentencing purposes could be averted in the case of criminal history factors, “because to a substantial extent the factors that best distinguish high-risk from low-risk offenders also are factors that make the former group more culpable than the latter (e.g., prior conviction, prior incarcerations, etc.).” (Rappaport, 1997, pp. 184–185) Julian Roberts (2008, p. 8) contends that this notion of increased culpability because of a history of prior convictions is “asserted rather than demonstrated.” Durham (1987) and Vincent (1997) also share Roberts’s (2008) concerns. These scholars contend that the link between criminal history and culpability should be considered a rebuttable assumption that would need to be thoroughly investigated in any sentencing process, including capital sentencing decisions. Implicit-attribute models of character Durham (1987) has argued that the use of prior criminal history is often justified on what he termed an “implicit attribute” argument. “There are several versions of this argument, all relying upon the general claim that recidivism is indicative of a greater personal evil, and, hence, a higher level of moral culpability” (Durham, 1987, p. 621). However, the specific evil is presumed rather than demonstrated (Roberts, 2008). Policy-makers have questioned whether repeated involvement in crime reveals specific attributes about the character of the offender (Durham, 1987). However, many sentencing systems seem to have answered “yes” to this question. The drafters of these sentencing systems assume that a history of repeated crimes is a proxy for a hidden attribute that explains the consistency observed in the offender’s criminal behavior. However, there are fundamental flaws in the logic underlying this assumption that should not be ignored by mitigation professionals. Durham wrote: Certainly it is logically consistent with a record of criminal activity that defiance, indifference, or general evil malevolence be found at the source of the behavior. Yet, mere consistency alone provides only the thinnest grounds for acceptance. A multiplicity of alternative hypothesized attributes possess

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an equal level of logical consistency. One must ask whether there are any independent grounds for viewing recidivism as the result of the underlying features. For instance, if defiance were at the root of recidivistic behavior one might expect to find defiance expressed in other areas of enterprise. Does the offender espouse a general rhetoric of repudiation? Do general dealings with others reflect defiant disregard for normative expectations? (Durham, 1987, p. 623) Notions of defiance and other underlying traits should be proven rather than accepted at face value. Many individuals in the justice system are quickly labeled “antisocial” because of their criminal history, but a close examination of their social history can demonstrate the presence of many forms of conformity and emotional caring about others that call into question the cavalier use of this and other relevant diagnostic labels. At the crux of any implicit attribute argument is the issue of moral character, which warrants close scrutiny by members of any mitigation team in assessing issues of moral culpability. In order to challenge arguments about character, mitigation professionals ought to have a rudimentary understanding of current theories of character development, because many of these theories raise fundamental fairness questions about many of the folk assumptions about character in current sentencing processes. Without a doubt, a criminal history raises some of the same types of collisions between sentencing purposes as do histories of physical abuse. For instance, persons with dyssocial personalities can engage in repeated criminal behavior not because they possess an inherently evil attribute, but because their repeated crimes are due to their unfortunate formative environment, which denied them an opportunity for exposure to relevant moral safeguards against engaging in criminal behavior. They engage in repeated crimes because they have acquired distorted notions of right and wrong that were emphasized by attachment figures in their intimate social environments. They also lack a manifest psychiatric disorder that can explain their repeated involvement in criminal behavior because their involvement in crime is a product of their culture or psychosocial environment rather than flawed psychological or character traits. “In the urban ghettos of large cities, many children are raised to believe that shoplifting, mugging, breaking and entering are perfectly legitimate ways of acquiring extra money; the only sin is to be caught. Such people cannot be called antisocial; they are truly dyssocial” (Hartman, 1978, p. 152). The “dys” in dyssocial refers to being abnormal or maladjusted. Persons with this prior DSM-I diagnosis engaged in bad behavior not because of personality attributes, but because of exposure to corrupted forms of socialization.

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The children in Dickens’s Oliver Twist are often seen as products of their environment. Fagin is seen as a villain in this novel primarily because of how he corrupted the children who lived under his care. The term Fagin syndrome has been applied in some situations to children raised in these corrupted social environments (Hartman, 1978). Many offenders are raised in environments that are governed by mores that promote various forms of aggression and crime that make it much harder for them to make choices like people from typical middle-class backgrounds (Hudson, 1999). Their corrupted life experiences raise important issues of moral luck that should not be separated from their choices and actions. They have also developed self-concepts that were cultivated in environments that are associated with different virtues and values from individuals exposed to middle-class mores and obligations. They are also different from individuals who demonstrate an inability to be socialized, which is often considered a cardinal feature of individuals who can be assigned an antisocial or pyschopathic personality diagnosis. The social histories of dyssocial personalities raise an important issue that some theories of character address better than others. These theories are useful in raising questions about whether it is legitimate to consider the children in Dickens’s novel Oliver Twist responsible for their moral characters. For many years, scholars have assumed that a fundamental characteristic of the antisocial personality is that they lack the capacity for socialization. These individuals presumably have a psychiatric or mental health disturbance. However, few practitioners testifying for the state are asked to demonstrate that the defendant lacked capacities for socialization. Current nomenclature is now considering individuals with flawed personalities as meeting the criteria for a diagnosis of pychopathy. Each diagnostic category—antisocial, dyssocial, dissocial, or psychopathic—involves different assumptions about causality and different assumptions about the offender’s moral qualities that define his character. Nonetheless, these important distinctions are not part of many assessments of offenders in capital cases. For this reason, we will review a number of assumptions about character formation that mitigation professionals are not giving due diligence in developing their mitigation themes because they might not be aware of some of the current debates in social science theory about moral development. Some of the newer theories of moral development are addressing assumptions about socialization processes that differ substantially from many of the trait or behavioral consistency approaches of explaining the development of moral character. They also challenge Kantian approaches to morality that focus solely on cognitive abilities and ignore other relevant sociocultural considerations. As MacIntyre wrote, “ To be a Kantian moral agent is . . . precisely to stand back from any and

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every situation in which one is involved, from any and every characteristic that one may possess, and to pass judgment on it from a purely universal and abstract point of view that is totally detached from all social particularity” (1984, p. 3). This neglect of sociocultural context is under significant challenge by social scientists (Blasi, 1994; Lapsley, 2008); legal theorists (Duff, 1990; Haney, 1995; Norrie, 2000); and philosophers (Taylor, 1989; Wolf, 1987). Whenever the contributions of external factors contributing to a person’s character are taken into account, the partitioning of responsibility between the person and environment becomes much more of a concern in blame-attribution processes (Schoeman, 1987). For this reason, practitioners need to adopt theories that can help frame for decision-makers why the environment can attenuate moral judgments about the defendant’s moral shortcomings or defects of character.

Theories of Moral Development and Character Formation

A key concern that mitigation professionals encounter in addressing their client’s criminal background is whether the offender has the capacity to engage in moral behavior as it is defined by the broader society or moral community. Most mainstream individuals who are raised in middle-class communities take for granted their experiences of socialization and how these experiences influenced their own moral development. The gap between their notions of morality and the morality of the underclass is often quite substantial. Many urban and rural individuals from substantially deprived backgrounds are cultivated to accept virtues, morals, and other expectations that depart substantially from the moral realities adopted by members of the wider community. These different virtues acquired in their socially excluded environments makes it much harder for some members of the underclass to choose to not sell drugs or use violence to settle disputes. Their life experiences and processes of socialization can also distort their evaluations of relevant obligations in situations involving conflicting moral demands or obligations. Lapsley (2008) identified three dimensions that divide and help in defining current approaches to character education. One dimension focuses on the cultivation of virtues, which is consistent with the views of Aristotle (the Greek philosopher) and Emile Durkheim (the French sociologist). The second dimension focuses on the development of reason and judgment. This dimension is rooted in Immanuel Kant’s notions of the autonomous moral agent who acts on the basis of principles of justice and fairness. This view of moral agency is consistent in many respects with Kohlberg’s cognitive approach to moral development. The third dimension assumes that moral qualities of persons are not a matter of possessing virtues, or

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a consequence of the cognitive developmental stages described by Kohlberg and his colleagues; instead, the third dimension focuses on framing the moral qualities of agents in terms of their selfhood or identity. However, the third dimension does not consider the self associated with this dimension as some transcendental attribute that is representative of the essence of the individual’s character. The third dimension recognizes, as an alternative, the long-standing recognition by social scientists and philosophers of the important connection between self and society (Mead, 1934; Schlenker, 1980, Schlenker et al., 1994). Baumeister and Exline (1999) argue that morality is a cultural structure that enables people to live in harmony. People acquire moral rules in processes of socialization that enable them to live together in social groups, and the internalization of these rules is defined in some ethical and moral systems as virtues. Virtue ethics has a long history in the criminal justice process, and some simplistic applications of this approach are employed in ways that supplant relevant concepts from the social sciences for mitigating the lives of offenders who were raised in highly criminogenic environments. These individuals have traits that they internalized from their environment that were adopted, not necessarily as a result of defiance or disregard of societal norms, but as a result of attachments to key role models in their immediate social environment. Because societies are responsible for helping their members get along with one another, many character educators have focused on promoting socialization processes that instruct individuals about what is right and wrong. This approach to character education is consistent with some of the early writings on this subject by Emile Durkheim (1858–1917). Durkheim was a major exponent of moral education. He assumed that each social group has rules about right and wrong that are external to individuals in that group, and that these external constraints on behavior are responsible for shaping how individuals in that group act towards one another (Bellah, 1973). However, his view of morality has been criticized because it can lead to moral relativism. In fact, many virtue and character theories have been criticized on these very grounds. Durkheim and many other scholars who hold traditional views of moral education assume that the knowledge of right and wrong is acquired through processes of group socialization. Kant, on the other hand, assumed that morality does not involve knowledge of specific virtues acquired through processes of group socialization, but instead, that morality involves engaging in rational and individual reflection about general principles of right or wrong associated with mature reasoning processes that are universal to individuals. Lawrence Kohlberg (1968), a developmental psychologist, has integrated Kant’s rational view of morality into his theory of moral development. In fact, his theory was in some sense a demur of

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what he considered the “bag of traits” approach to morality associated with most virtue theories of morality. Ashford and LeCroy wrote: [Kohlberg] based his critique of character traits from Hartstone and May’s (1929) series of studies that showed that behavior proved inconsistent with a specific character trait depending on the context in which it was examined. This strong influence of the situation on behavior has also been supported by more recent social psychological scholars (Baumeister, 2005; Doris, 2002). . . . Besides questions about the role of traits on moral behavior, Kohlberg argued that a structural theory of stages is not as troubled by contextual variations. That is, Kohlberg replaced the invariance of personal virtue with an invariance of cognitive structure. (2013, p. 105) According to Kohlberg, children develop different cognitive structures at different stages of development for making judgments of right and wrong. Kohlberg’s structural approach to development has not been without controversy. It assumes that persons will identify different justifications for right and wrong at different stages of development, but his theory said very little about character or about predicting actual moral behavior. Kohlberg acknowledged that knowledge of a person’s moral development will not necessarily predict how they will behave. Indeed Thomas Jefferson’s relationship with Sally Hemings was employed by Kohlberg to make this very point. According to Kohlberg, Jefferson was an exemplar of how moral behavior can deviate from principled stages of moral development, in that Jefferson’s behavior about slavery differed substantially from many of his other principled notions of equality and fairness (Nucci & Turiel, 2000). This gap between moral judgments and actions observed in Jefferson and others is one of the inconsistencies plaguing many theories of character and moral development. Persons with specific character traits or virtues can behave differently in different social contexts (Doris, 2002). Similarly, persons functioning at principled stages of moral development can deviate from their stage of cognitive development in making choices and in taking actions (Lapsley, 2008). The psychologist Blasi (1984) focused on the prior gap between judgment and action and identified the moral self/identity as the moral quality of a person that is most closely associated with a person’s moral behavior. According to Blasi, moral structures of thought have an indirect relationship with moral action, rather than a direct relationship. After a person makes a moral judgment, the self must determine whether the self is obligated to adhere to the moral judgment or principle (Narvaez, & Lapsley, 2009). Many people, for instance, desire to be charitable,

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but the self must determine whether being charitable is what should guide their behavior in specific life situations. Is a charitable individual obligated to give a person money if the individual is confronted by a beggar on the street requesting money for food? According to Blasi (1984), people need to make a judgment about whether they have a responsibility or an obligation to be charitable in any given situation, including the prior situation involving a person begging on the street for money. Narvaez and Lapsley wrote, Responsibility judgments attempt to sort out the extent to which the morally good action is strictly necessary for the self. Moreover, the criteria for reaching responsibility judgments are a matter of individual differences in so far as [they vary] in accordance with one’s self definition. Is acting in this way so necessary for myself[,] understanding that not to act is to lose the self? Are moral notions so central to my identity that failing to act, or indulging in excusing rationalizations, is to undermine what is my core personhood? Blasi suggests that the cognitive motivation for moral action springs from this sense of fidelity to oneself-in-action. . . . It springs from a moral identity that is deeply rooted in moral commitments—commitments so deeply rooted, in fact, that to betray these commitments is also to betray the self. (2009, p. 242) In essence, the self or identity resulting from moral commitments and identifications is what mediates cognitive judgments of what is right and wrong and whether one is obligated to comply with these judgments. According to Blasi (2005), if the self does not adopt the moral dimensions shared by other members of that moral community, then this person’s choices or actions will not have moral significance for that person. Blasi’s theory of self/identity is consistent with Susan Harter’s (1978, 1981) widely acclaimed “domain theory of self.” Blasi contends (in keeping with Harter’s theory) that people do not have a general moral self that extends to all situations, but a moral self that relies on commitments and identifications with situation- or domain-specific obligations. Thus, Blasi’s theory recognizes that “not everyone constructs the self by reference to moral categories” (Narvaez & Lapsley, 2008, p. 35). Blasi’s notion of the moral self has been extended by Power (2004) to include a social dimension that makes Blasi’s theory extremely useful for addressing moral character issues in cases involving unfortunate formative environments. Power (2004) has emphasized in his writings that individuals must be socialized in a moral or just community in order to develop a self that will acquire appropriate moral dimensions. His theory of self, like Blasi’s theory, was significantly influenced by

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the philosophical writings of Harry Frankfurt (1971). For this reason, it is important for practitioners to have some understanding of Frankfurt’s views of the self and how other theorists have extended his assumptions in ways that are useful for mitigating a defendant’s moral culpability.

Harry Frankfurt’s Influence on Moral Self/Identity Theory

Harry Frankfurt (1971) developed a famous thought experiment that not only challenges the value of a person’s hypothetical ability-to-do-otherwise as a necessary condition of moral responsibility, but also introduces different conditions for assessing a person’s moral responsibility (Wolf, 1998). Frankfurt (1969) shows in his thought experiment about “Black and Jones” that the possibility of an alternative sequence of events is irrelevant to “Jones’s” responsibility. “Black” takes extraordinary measures (in Frankfurt’s thought experiment) to insure that “Jones” will carry out a harmful action that Black desires, but in the experiment Black does not have to institute his controlling mechanisms, because Jones, for reasons of his own, wants to do the actions that Black requested of him. In other words, Jones objectively could not have done otherwise because of the constraints on his functioning that were imposed on him by Black, but in spite of this fact, he also possessed a desire to commit the act requested by Black. This personal desire to commit the act is why he would be considered morally responsible for his action even though he could not have done otherwise. That is, Jones’s action was reflective of what he truly desired, which Frankfurt (1971) argued ought to be the defining condition of his responsibility, and not his ability-to-do-otherwise. Frankfurt (1971) and Tadros (2007) (the criminal-law theorist) assume that persons who commit intentional acts that are alienated from their deep-self are less culpable than persons who engage in acts that represent their true values or sense of self. In keeping with this viewpoint, persons who are pressured or forced to go against values that are consistent with their deep-selves are less morally blameworthy than persons who act in accordance with their deep-selves. According to Blasi, moral action springs from a moral identity (Lapsley, 2008). This moral identity is what individuals use to evaluate what Frankfurt termed first-order desires. According to Frankfurt, moral individuals evaluate their first-order desires in ways that constitute who they are as persons—the deep aspects of their self. Lapsley wrote: Frankfurt assumes that individuals who have second-order volitions are persons: those who do not are wantons. A person cares about the sort of desires, characteristics and motives one has, and wants effectively to instantiate

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these in one’s life. A wanton is beset by first-order desires that are ungoverned by second-order volitions. (2008, p. 34) In Frankfurt’s view, the previously described self-reflective capacity is identified as the moral dimension of the self. “A person cares about the desirability of his or her desires (‘second-order desires’) and wishes to conform the will in accordance with them (‘second-order volitions’)” (Narvaez & Lapsley, 2009a p. 239). Frankfurt used these second-order desires and volitions, which Susan Wolf (1987) referred to as a “deep-self” view of moral responsibility, to challenge alternative-sequence or ability-to-do-otherwise conditions of moral responsibility. Moral responsibility and the ability to do otherwise Alternative sequence approaches to moral responsibility assume that when an alternative exists for an agent to behave otherwise, then that agent is morally responsible for his choice. Most prosecutors challenge causal explanations of behavior involving the unfortunate formative development of a defendant by appealing to alternative-sequence (or ability-to-do-otherwise) tests of whether an agent is responsible for his or her behavior. However, since Harry Frankfurt (1969) provided his seminal critique of alternate sequence requirements for responsibility, a number of other philosophers (Fischer, 1987, 1994; Klein, 1990 & Wolf, 1990) have also questioned many of the previously unexamined assumptions underlying ability-to-do-otherwise requirements for assessing moral blame. In their view, the critical issue is not the person’s ability to do otherwise, but whether the choice is consistent with the true values of the person or their deep sense of self. Prior to these newer writings on moral culpability, most critiques of alternative sequence approaches appealed to what has been termed the regression requirement of responsibility (Klein, 1990). Regression approaches to moral responsibility are often considered actual sequence approaches to responsibility because they assume that the person would have to be responsible for the sequence of events that actually caused X in order to be judged responsible. The problem with this type of approach for many philosophers has been that we can never be confident that we have identified whether the individual was responsible for the regressed events, whether we have traced the causal events back far enough in time, or whether the agent is merely acquiescing to specific situational constraints, rather than being determined by a specific sequence of actual events (Hurley, 2003). Philosopher Susan Wolf (1987) writes about an interesting problem involving a hypothetical case of “Jo Jo” that confronts a culpability concern often encountered by mitigation professionals in addressing issues involving conceptualizations of the self that are due to unfortunate forms of socialization (an actual sequence

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condition). “Jo Jo” is the son of “Jo the first,” who is considered an evil and a sadistic dictator from a relatively small country. Jo Jo is afforded a very unusual education and range of socialization experiences because he is Jo the First’s favorite son. Jo Jo would go everywhere the father went, including events that allowed him to be exposed to the administration of torture and other forms of harmful behavior that were initiated by his father. The upshot is Jo Jo develops values and desires that are very much like those of his father. “As an adult, he does many of the same sorts of things his father did, including sending people to prison or to death or to torture chambers on the basis of whim” (Wolf, 1987, p. 54). In the case of Jo Jo, it is “unclear whether anyone with a childhood such as his could have developed into anything but the twisted and perverse sort of person that he has become” (Wolf, 1987, p. 54). Jo Jo engages in many activities with important implications for assessing the quality of his moral character. He consistently engages in evil activities, but many of his activities are a result of his life experiences. He was not encouraged in his social environment to adopt different values and desires from those of his father. Moreover, he meets Frankfurt’s condition of second-order volitions because he personally desires to do the acts that he learned from his father. He also meets Tadros’s (2007) requirement for attribution responsibility because Jo Jo’s actions were not alienated from his deep-self. For these reasons, his case provides an excellent opportunity for evaluating the value of identity theories of character for assessing such cases, as well as the historical case of Robert Alton Harris. We also believe that these two cases can help mitigation practitioners learn how to test potential themes for mitigation of aggravated cases of homicide.

Challenges posed by Jo Jo and Robert Alton Harris

Susan Wolf uses the case of the fictional Jo Jo to introduce some interesting philosophical problems with important implications for mitigation practice. Many of these same issues that she confronts in assessing potential mitigation of Jo Jo’s culpability are also addressed by Gary Watson (1987) in his examination of Robert Alton Harris’s biography. Both Harris and Jo Jo were victims of their respective environments, but they were also people who engaged in bad behaviors that were supported by their deep-selves. As a consequence, their cases pose good questions for mitigation professionals in testing the limits of claims of mitigation in circumstances involving exposure to inappropriate socialization processes. According to Wolf (1987), we need to understand why some intentionally bad actions are mitigated and others are not. She contends that most people have an intuitive understanding that Jo Jo is not fully responsible for his acts because

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of his upbringing. In doing so, however, she makes some important distinctions between Jo Jo and his father in evaluating their respective moral responsibilities, with implications for developing mitigation themes. When individuals have shared agreement about issues of right and wrong and violate these agreements (like Jo Jo’s father), then we naturally react with moral outrage to these individuals (Watson, 1987). Reactive attitudes are “natural responses to the good or ill will or indifferences of others towards us (or toward those we care about) as displayed in their attitudes and actions” (Strawson, 1974, p. 67). However, when we know that individuals were raised in distorted realities, then we are more likely to react objectively to their actions because we recognize that they do not share our ethical viewpoints (Watson, 1987). Watson (1987) argued that when people are saying that they are “reacting objectively” to a person it means that they are recognizing that individuals need to be rehabilitated or deterred and not blamed. Objective reactions do not deny the badness of a person’s behavior, but indicate that the reactions of moral outrage or resentment are inappropriate. Watson (1987) supports Wolf’s “sane-self-view” by arguing that what makes Robert Alton Harris’s situation a condition for mitigation is not that it was caused by an unfortunate formative environment, but that his environment negatively influenced his capacity for sanity or practical rationality. According to Wolf (1987), a person who wants to be sane is an individual who wants to live in the real world. “[I]t is a desire to be controlled (to have, in this case, one’s beliefs controlled) by perceptions and sound reasoning that produce an accurate conception of the world, rather than by blind or distorted forms of responses” (Wolf, 1987, p. 358). In keeping with this view of sanity, Wolf contends that Jo Jo does not adhere to a rational or sane view of reality. In her opinion, he grew up in a social system that adhered to distorted expectations for relating with others. Both Wolf (1987) and Watson (1987) argue that we acquire sanity through the processes of interacting with others. The way we interact with others in our environment is what determines how we develop our obligations and knowledge of normative standards. We also learn these expectations by being exposed to reactive attitudes about specific normative standards, which is an important form of practical reasoning (Watson, 1987). Wolf contends that the reason why some people who engage in ill will can have their culpability mitigated is because their attitudes were distorted by their formative experiences. Her viewpoint is shared by Gary Watson (1987) who took a similar position in examining relevant mitigating conditions in the case of Robert Alton Harris. Each of these prior philosophers assumes that what was potentially mitigating in the cases of Harris and Jo Jo was the fact that both of these men were “unqualified” members of their respective moral communities. Neither of these

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individuals had a framework for practical reasoning that he shared with members of the wider moral community. For this reason, Wolf and Watson did not believe that it was fundamentally fair to assume that Jo Jo and Harris had the same moral principles as other people. They contend that persons who share the same framework of practical reasoning, but choose to violate the standards associated with that framework, are much more culpable than persons who were not exposed to that shared framework of practical reasoning. Without a doubt, Jo Jo and Harris were products of distorted or maladjusted moral communities that significantly influenced each of their moral senses of self.

Relationships Between the Self and the Moral Community

Theories of punishment also vary in their assumptions about the transgressor’s relationship with the moral community. For instance, the communitarian philosopher R. Antony Duff (1990) assumes that punishment ought to communicate to an offender the wrong committed by the offender and persuade the offender to refrain from similar activity in the future. This communication between the community and the offender is designed to reform members of a moral community who deviate from their obligations to that community. In keeping with this viewpoint, Watson (1987, p. 377) wrote, “If we suppose moral address requires moral community, then some forms of evil will be exempting conditions.” This controversial viewpoint is predicated on the assumption that some individuals are allowed to develop alternative adaptations in their group because they were denied an opportunity to be members of the general moral community. Moreover, if they are not members of that wider moral community, then the possibility exist that they will not understand the significance of the punishment that is administered by the justice system. That is, they are unlikely to grasp the moral significance of specific obligations in the same way as qualified members of the moral community. When we blame someone morally, we attribute the blame to his moral fault, defect of character, or moral shortcoming. Jo Jo and Harris both had significant moral shortcomings that were directly related to their formative socialization processes. Many moralists recognize, however, that “when people err, if the error comes from facets of the personality that the person is not blameworthy for having, it is not quite right to blame the person for the error” (Schoeman, 1987, p. 311). This moral viewpoint is grounded in principles that support the contention that people should have a fair opportunity to develop relevant moral qualities. Norrie wrote: Duff ’s model insists upon a moral relationship between the individual and the community so that punishment is a moral response to wrongdoing. In

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that regard, it is no different from either the classical or the modern Kantian account of punishment. However, it differs significantly from such theories in its emphasis upon both the dialogic relationship between the individual and the community and the insistence that penal communication can and should perform a function of individual reform. Within the standard Kantian account, the emphasis is on the individual and her independent acts as a responsible agent. There is nothing for the community to do other than give her back what she deserves. For Duff, the community needs to explain to the individual the nature of her wrongdoing and, through punishment, to contribute to her improvement. This more constructive view of the relationship between the individual and community disarms the criticism of Kantian theory that it produces only an abstract and artificial conception of criminal justice. (Norrie, 2000, p. 120) An important assumption underlying Duff ’s view of punishment for mitigation professionals is that punishment is not justified “when offenders have not wronged members of a genuine community . . . that respects and cares for them, and that thus has the moral standing to criticize them. Where punishment is to provide moral education in a context that is itself deeply immoral, the individual is being educated only in the value of hypocrisy” (Norrie, 2000, p. 121). In Harris’s case, he was not exposed during his upbringing to an environment that offered him care and respect. Instead, he was exposed to serious forms of brutalization by members of his family and by the justice system. Indeed, he was not provided care, respect, and other experiences in his prior incarcerations that would have taught him appropriate moral forms of behavior that were expected of him from the general moral community. The notion of a “genuine community” fits with a number of conceptions of moral agency in the social sciences and the need for contextualizing the actions of offenders. This recognition of the importance of the relationship between the individual and his or her community allows for the contextualization of wrongful choices in assessments of culpability. Duff (1990, p. 362) wrote that the moral nature of a person’s action “depends not primarily on what she chooses to do, but upon the motives, concerns, and values from which action and choice flow—the character which her actions manifest.” There are newer sociocultural concepts of character that can provide a strong foundation for helping mitigation practitioners examine the contributions of external constraints to the moral character of agents, their choices, and their desires. As Albert Einstein wrote: Everybody acts not only under external compulsion, but also in accordance with inner necessity. Schopenhauer’s saying, “A man can do what he wants,

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but not want what he wants,” has been a very real inspiration to me since my youth; it has been a continual consolation in the face of life’s hardships, my own and others, and an unfailing wellspring of tolerance. (Einstein, 1931; retrieved August 2, 2012, from: http://sciphilos.info/docs_pages/docs_ Einstein_fulltext_css.htm) In the prior quotation, Einstein is demonstrating support for sociocultural views of character formation. These theories have important implications for fostering attitudes of tolerance and objectivity, rather than moral outrage. Harris clearly was not completely responsible for wanting what he wanted. Most of his violent desires were shaped by his violent formative experiences.

Emerging Sociocultural Theories of Character Formation

Sociocultural views of the socialization of morality have undergone substantial changes in recent years (Grusec, 2006). These newer theories of character emerged in response to a number of interesting challenges to Kohlberg’s theory of moral development. The most significant was probably Gilligan’s (1977, 1982) questioning of Kohlberg’s male-dominated orientation to justice that ignored a “care voice” that is more commonly seen in girls. Tappan (2006) has argued that Gilligan’s insight into the role of everyday moral language in developing her theory of moral development was pivotal to the construction of several newer sociocultural explanations of morality. Gilligan’s theory of morality is important for mitigation professionals because it recognized the central role played by social forms of discourse in a person’s moral life. As Tappan noted: [I]t [Gilligan’s theory] necessarily entails an explicitly dialogical conception of the moral self—a conception of the moral self, that is, generated by a move away from a paradigm of cognitive representation and internally held principles, wherein the self is assumed to be a disembodied, transcendental epistemic subject (see Kohlberg, 1984), toward a paradigm of social construction and intersubjectively possible forms of discourse, wherein the self is assumed to be a shared and/or distributed product of social relations and communicative practices. (Tappan, 2006, p. 322) This newer perspective on morality is very supportive of the contributions of sociocultural and institutional contexts on self and character-development processes (Tappan, 2006). These theories are also very consistent with Duff ’s views on

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punishment, which stressed the significance of the dialogical relationship between the community and the offender. Insofar as sociocultural explanations of self have witnessed a marked increase in the social sciences, mitigation practitioners still confront perspectives on moral attribution that abstract the person’s self from their sociocultural context. These perspectives do not acknowledge how the life experiences of Harris would have had a similar influence on just about anyone who was exposed to his uncaring and abusive life circumstances. In addition, many jurors are likely to apply some of their own distinct attributes to the defendant’s situation. For this reason, mitigation professionals are expected to link normal human frailties with the types of defects in character noted in the lives of individuals like Robert Alton Harris who were exposed to conditions that would corrupt the moral development of anyone subjected the kinds of life challenges that he encountered throughout his formative years. However, this mitigation project is not easily accomplished if the mitigation team cannot successfully challenge unfair attributions to the defendant’s character development and cannot engage members of the jury in considering the potential impact of his life experiences on just about anyone. It is often helpful for defense counsel to ask members of the jury if they would want Harris’s family to care for any of their own children or grandchildren. If so, for what length of time? This type of questioning can allow members of the jury to use their own experiences, not to judge the defendant about how he would have acted in the criminal situation, but to consider how the defendant’s background and experiences would have contributed to the circumstances surrounding the crime. Although we may assume that jurors should suspend their moral outrage towards individuals like Harris, their sympathies can be overridden by reactive attitudes that focus much more on Harris’s conduct and character defects than on the reasons behind his violent behaviors. Strawson, in his seminal philosophical piece Freedom and Resentment and other Essays (1974), described how our practices (reactive attitudes towards infractions committed by other humans) are what express our moral natures, rather than our theories or beliefs about relevant conditions for defining morality. Strawson’s thesis has important implications for mitigation professionals because, if the conduct or character is not framed in a way that attenuates reactive attitudes, then it is unlikely that individuals will develop an objective attitude toward the defendant. According to Strawson, an “objective attitude” involves any conditions that can modify or inhibit reactive attitudes of resentment in people (Watson, 1987). “Strawson’s examples are being psychotic, being a child, being under great strain, being hypnotized, being a sociopath (‘moral idiot’), and being ‘unfortunate in formative circumstances’” (Watson, 1987, p. 260). It is important to note, however,

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that an objective attitude is unlikely to be devoid of all emotions. Indeed, it is possible that people can lose a sense of resentment toward Harris, but they can also still have emotions towards him, including emotions of repulsion and/or fear (Watson, 1987). In developing mitigation strategies, the emotions of the jury need to be engaged rather than denied (Berman & Bibas, 2008). I recently had an opportunity to speak to Karen Froming, a widely sought-after mitigation expert on neuropsychology issues, about this very matter. She pointed out that when testifying about mitigation evidence she always tries to engage the jury’s emotions when presenting important themes that are designed to counteract emotions that jurors are likely to have about the crime or the defendant. In essence, mitigation professionals need to be highly skilled in adopting strategies that can help frame their narratives in ways that are more likely to weaken reactive attitudes of moral outrage and/or fear. Many people on hearing Harris’s life history recognize that he was a victim, but also considered him evil because of the disdain that he demonstrated toward the broader moral community and its members. His lack of prosocial attitudes was even recognized by other offenders who shared life with him while on death row. Harris’s behavior and character trigger reactions of both sympathy and antipathy. The antipathy is directed towards his character and conduct, while the sympathy is more closely linked with his biographical history of victimization (Wolf, 1987). These competing potential reactions to Harris illustrate the salience of emotional issues in evaluating a person’s character in a capital case. They also illustrate Haidt’s (2012) contention that reason is the servant of our moral passions, which is an important principle that should not be ignored by mitigation professionals in making decisions about how to frame the presentation of mitigation evidence. In the next chapter, we will review some selected results from the attribution literature in the fields of philosophy and psychology that can help practitioners in framing and selecting strategies for presenting the defendant’s mitigation story.

Summary

This chapter links issues of social and cultural context to assessments of character. In doing so, I reviewed debates in the social science and moral philosophy literature about the nature and development of character and its connection to issues of diminished moral culpability. The moral arguments offered as potential strategies for disputing characterizations of character and personality widely adopted by prosecutors were applied to hypothetical and real cases to illustrate their potential utility. Problems with current diagnostic classifications and assumptions about relationships between criminal history in increased levels of

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culpability were also discussed. The primary goal of this chapter was to introduce new ways of thinking about character from the fields of law, social science, and philosophy that can help mitigation professionals dispute assumptions about the moral significance of specific types of consistencies in an offender’s history or behavior.

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attribution of responsibility is an issue that is easily conflated with other types of criminal responsibility. Attribution of responsibility involves assigning an explanation for a wrongful action to specific reasons or causes of behavior (Tadros, 2007). This form of culpability assessment takes into account issues of motivation and character. Motivations matter in penalty-phase assessments of culpability unlike assessments of culpability in determinations of guilt (Nadler & McDonnell, 2012). The focus shifts in penalty-phase deliberations from evaluations of criminal culpability to evaluations of the person’s moral culpability or moral blameworthiness. Even though an individual is criminally culpable for a killing, the killing can be less morally blameworthy after jurors take into account the social history of the defendant’s motivations. Motives are critical in the penalty phase of the criminal process because jurors want to understand why the person committed the crime. The motive extends the assessment, from establishing an intent to kill someone for revenge, for example, to assessing why the individual felt a need to get revenge (the motive[s] behind the defendant’s criminal purpose). The purpose of the act might be to get even with the victim (the defendant’s criminal intent), which is the fundamental concern in the guilt phase of the criminal process, but determining the motivations behind this purpose are the primary concern in the penalty phase of a capital case. Some motives of revenge are less blameworthy than others after they are placed in a 160

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broader social context. Mitigation practitioners have the responsibility of making sure that the social history of the defendant’s motivations are taken into account in assessing the defendant’s moral culpability. In meeting this responsibility, it is expected that they can present a moral argument that will lead to fairer evaluations of a defendant’s motivations. The purpose of this chapter is to examine attribution frameworks and other hypotheses from social science and legal philosophy with implications for identifying factors that are likely to activate negative mindsets or negative emotional responses to capital defendants. These frameworks provide competing metaphors for how jurors are likely to respond to different narratives about the guilty party’s motivations for his or her criminal actions. Fair attributions about the person’s character and motivations are central considerations in penalty-phase inquiries. In the prior chapter, we identified and examined social science theories and philosophical frameworks with potential implications for activating fair attributions of character. In this chapter, our aim is to identify relevant philosophical and social science frameworks that can help practitioners present mitigation themes about the socially oriented motivations of capital defendants. The humanization of capital motivations is not easily achieved when it is preceded by prosecutorial frames that arouse the moral outrage of the members of a jury. This chapter focuses on helping practitioners understand the best ways of framing accounts of a defendant’s violations of societal, norms, values, and taboos that are threatening to the social order (Tetlock, 2003).

Attribution Issues in Penalty-Phase Judgments

Schoeman (1987), a philosopher of the psychology of morality, contends that philosophers have grappled for centuries with the process of attributing moral fault to an agent for behavior caused by factors external to that agent. Yet he was uncertain whether it is useful to appeal to theories of attribution from the field of psychology when making moral judgments about attitudes or behaviors. However, Schoeman (1987) concluded, after he critically examined some of the fundamental assumptions in attribution theory, that there were some latent aspects of this social science approach with utility for making moral assessments of human behaviors. We also believe that selected aspects of attribution theory can offer useful guidance to mitigation professionals in developing and framing appropriate mitigation themes once practitioners are sensitized to some of its limitations in addressing moral concerns in criminal-sentencing processes. Attribution theory focuses on identifying the rules and standards of evidence that lay persons are likely to use in making causal inferences and predictions about

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behavior in their social environment. Do they take into account relevant base-rates in predicting the behavior of individuals in ways that are similar to Bayesian statisticians? Do the causal inferences of ordinary persons involve an apportioning of variance between personal and environmental factors comparable to traditional analysis of variance research methods (Schoeman, 1987)? The developers of attribution theory assumed that the metaphor of an intuitive scientist is useful for guiding research on human judgment and choice processes. Indeed, a primary purpose of using the intuitive-scientist metaphor in traditional attribution theory is to aid researchers in examining whether the information processing strategies of humans resemble formal scientific methods of analysis. However, the important question for moral philosophers and mitigation practitioners is the legitimacy of applying scientific metaphors involving causal explanations of attitudes and behavior to moral evaluations of these concerns. Jurors are expected to make reasoned moral evaluations of the defendant’s blame and culpability. Heider wrote, “[When] we see behavior as stemming from causes external to the agent, the less the behavior can be causally attributed to him or her; and the less the agent’s causal contribution, the less his or her moral contribution” (Schoeman, 1987, p. 238). In challenging this assumption, Schoeman (1987) identified several threats to moral evaluations of agents that are based on the apportioning of personal and situational factors to moral judgments of attitudes or behavior. These threats involve the following distortions: (1) the conflation of predictions of behavior with moral evaluations of behavior; (2) the conflation of motivational conflicts with moral conflicts. We assume that mitigation professionals ought to keep these common distortions in mind when assessing the motivations of capital offenders because they are consistent with recent developments and findings in the field of social psychology about how lay persons spontaneously attribute blame for violations of norms (Alicke, 2000). Schoeman (1987) introduced his concerns about the misuse of attributions of causality by analyzing how attribution theorists interpreted the results of the famous Stanley Milgram experiment. In this social psychological experiment, the subjects were asked to administer increasingly strong “shocks” to individuals when they failed to answer questions correctly. About two-thirds of the subjects in this study provided the full battery of shocks even though they assumed that the respondents were being seriously hurt (the respondents were actors and the shocks were fake). Many attribution theorists concluded from this finding that the contextual conditions of the experiment are what influence the subjects’ high levels of compliance with requests for shocks in the experiment by the authorities responsible for the subjects’ actions. However, most lay persons who were surveyed about the actions of the study’s subjects attributed the causes of their

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behavior to defects in the subjects’ moral character. These variations in interpreting the causes of this experiment led attribution theorists to conclude that the reason why the environmental causes were ignored by lay persons was because they possessed a fundamental attribution bias. Schoeman contends that attributing the behavior of the participants to the experimental conditions provides no guidance for assessing the moral culpability of the participants in the study. Attribution theory, in his opinion, is useful for identifying biases and errors in making predictions and judgments about causal concerns. That is, the identification of attribution biases is relevant for explaining the behavior of similarly situated persons, or for making predictions about how people are likely to attribute blame under similar conditions, but not for morally evaluating the behavior of the participants in the Milgram experiment. In keeping with this proposition, he argued that the morally relevant component of this study was not the large numbers of subjects who complied with requests for shocks (the finding that attribution theorists associated with environmental causation), but the fact that the administration of shocks was supported by the authorities who were directing the subjects in the experiment. Schoeman (1987) also extended his reasoning about the role played by authorities in making moral assessments in the Milgram experiment to the problem of police entrapment to show how encouragement by authorities to engage in wrongful behavior is predicated upon morally disquieting circumstances. In fact, he opined that the only reason why the defense of entrapment is considered legitimate in criminal law is because the encouragement in cases of entrapment involves authority figures. He wrote: Many social factors besides police entrapment dispose people to regrettable behavior. Still, the authority of the source of the entrapment weighs in our evaluation of the agent. . . . Although a person is no worse when he or she succumbs to inducements of authorities disguised as ordinary citizens, we think that when an agent, including the state, has fallen below a certain level of rectitude, that agent has lost any standing to criticize. Analogously, if quasi-authoritative social forces have significantly contributed to wrongdoing by themselves falling below a moral threshold, then these authoritative forces lack the standing to blame others for misdeeds attributable to this failing. Certain threshold social conditions must obtain for the moral apparatus to become engaged. This involves matters of degree; appreciating the extent to which a society encourages corrupt attitudes is an important factor in moral assessment. What is at issue here is not just a matter of efficiency, but also one of fairness. (Schoeman, 1987, pp. 312–313)

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In keeping with the prior reasoning, mitigation professionals cannot ignore taking into account the contributions of authorities in causing various types of criminal behavior. There are many situations that mitigation professionals will encounter that involve encouragements by authorities (parents or other role models) for engagement in immoral acts that can be used by mitigation practitioners to humanize and explain the defendant’s behavior. For instance, prisoners are often encouraged by prison authorities to control other prisoners, and this encouragement reinforces the use of violence and other untoward behaviors that are rejected by the general moral community. This form of institutional support for attitudes and behavior in prisons introduces a moral problem into the equation when prison gang members kill other prisoners to control their behavior because the killing of the victim resulted in part by support given to gangs by prison authorities. Schoeman (1987) also argued that one of the reasons why we evaluate persons differently with racist, anti-Semitic, and sexist attitudes today—from persons subscribing to these attitudes in the past—is not because of numbers or base rates, but because persons holding these moral viewpoints today lack wider social institutional support for these attitudes. That is, large-scale forms of social evil can be differentially viewed when they have greater institutional support than when they are beliefs and attitudes that are not supported by what are considered legitimate social institutions. In some circumstances, institutional support for behavior serves to mitigate individual moral responsibility and culpability. However, it does not eliminate the fundamental moral qualities of the behavior or attitudes in question. This nuanced argument is often missed by jurors and members of the larger society. Gang members and prisoners, like individuals from ordinary social backgrounds, are exposed to many forms of contradictory moral mandates. For instance, the American culture has a long history of providing its members with contradictory moral messages about the use of aggression. The availability of contradictory cultural dictates about aggression serves to further aggravate the adoption of aggression by individuals exposed throughout their lives to aggression as a viable solution for resolving problems in their immediate social environment (Lofland, 1968). While the broader community expects persons who are threatened to seek help from third parties who are responsible for dealing with disputes and abuses of rights (the police), there are competing values that are stressed in other social systems, like prisons, that support the adoption of aggression as a form of self-help or self-defense (Black, 2010). Matza and Sykes wrote, The ability to take it and hand it out, to defend one’s right and one’s reputation with force, to prove one’s manhood by hardiness and physical courage—all

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are widespread in American culture. They cannot be dismissed by noting the equally valid observation that many people will declare that “nice children do not fight.” The use of aggression to demonstrate masculinity is, of course, by numerous prohibitions against instigating violence, “dirty” fighting, bullying, and blustering and so on. Yet, even if the show of violence is carefully hedged in by both children and adults throughout our society, there is a persistent support for aggression which manifests itself in the derogatory connotations of labels such as “sissy” or “fag.” (1961, p. 717) These contrary mandates and messages about aggression are the historical materials from which people develop their identities and life choices about aggressive responses. Mitigation specialists are expected to document the contrary messages that their client is exposed to for use in the development of the defendant’s mitigation story. Most middle-class individuals are not exposed to aggressive moral mandates that make aggression as subjectively available to them as individuals who are raised in highly violent and aggressive environments. As a consequence, they appeal to different ideologies in justifying their behaviors and choices than the justifications and the ideologies of persons who grow up in violent urban environments. Individuals in violent urban environments are often not integrated within the broader social institutions. This isolation leads to the formation of different ties to individuals in close proximity to where they live. These isolated enclaves are an open invitation to the formation of mini-societies with distinct social worlds that support a culture that does not see the police, courts, and other authorities as appropriate resources for settling disputes. Third parties are appealed to by persons from the wider moral community who see the third parties as legitimate resources for resolving disputes. However, this is not the case in many urban barrios and other isolated communities where individuals are socialized to not have confidence in the police and other mainstream social institutions. When individuals do not have confidence in police, the courts, or other relevant social institutions, they are at increased risk of engaging in various forms of self-help that is designed to resolve extant conflicts and disputes, including the use of violence (Black, 2010).

Social-Psychological Theories of Justification

All complex societies rely on justifications for various types of behavior, including moral and immoral forms of behavior. In fact, appeals to morality are often grounds for many forms of individual and collective forms of evil (Baumeister,

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1997). Moral justifications enable actors to neutralize the influence of other normative constraints on behavior that are not consistent with their beliefs or desires (Sykes & Matza, 1957). For this reason, criminologists, psychologists, and sociologists have looked closely at the types of justifications and accounts provided by offenders in assessing their motivations for crime (Bandura, 1999; Lyman, 2001; Scott & Lyman, 1968; Tetlock, 1995). A careful assessment of these justifications can help identify the presence of moral conflicts, which is important, because many philosophers have considered the experience of moral conflicts as appropriate grounds for mitigation in select circumstances. For instance, Von Hirsh and Jareborg (1987) examined why we assume that individuals who are provoked are considered less culpable. In developing their arguments, they examine various philosophical grounds for mitigation, including the issue often debated in the philosophical literature between diminished volition and justifiable forms of anger. While many forms of extreme emotional distress are due to anger, they believe that any moral evaluations of culpability must distinguish between types of provoked anger, because not all forms of anger ought to be considered appropriate grounds for mitigation. In their view, when an agent, or members of the agent’s family, is wronged by the victim, then this type of provocation is less culpable than provocations that do not involve a harm or a loss to the defendant. For instance, they would not consider becoming angry because someone won a competition as mitigating (Von Hirsh & Jareborg, 1987). In order for anger to be mitigating, it must involve some type of threat or loss to the individual’s sense of justifiable well-being. They also contend that it is not the strength of the feeling engendered by the provocation that is mitigating, but the nature and quality of the provocation. There is empirical support (Finkel & Parrott, 2000) for attributing less culpability to persons who kill out of fear rather than anger, which is consistent with the points made by Von Hirsh and Jareborg (1987). When threats to one’s reputation would not constitute a threat to a person from a middle class environment, it is unlikely that many jurors would see the anger resulting from a threat to one’s honor in violent urban environments as mitigating. However, Von Hirsh and Jareborg (1987) object to the cavalier rejection of these forms of loss of reputation merely because they support views of honor or social standing not shared by members of the wider community. For instance, if a person lets a provoker get away with challenging his manhood in many honor-oriented communities like Sicily, then this could lead to an important loss of status with serious implications for his standing and survival (Nisbet & Cohen, 1996). In other words, if the male in this context does not respond to personal attacks in ways that are dictated by his personal community, then he will be shamed for not

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responding, and this shame will increase his vulnerability to additional attacks (Von Hirsh & Jareborg, 1987). To consider the agent’s situation “mitigating” in the prior circumstance is neither advocating for his behavior to be considered justifiable nor is it suggesting that the person’s standing is as important as the victim’s physical well-being. Instead, Von Hirsh and Jareborg are arguing that the agent has a legitimate interest in maintaining his or her status, and the protection of this interest should deserve some reduction in the agent’s blame. That is to say, there is a qualitative difference about this type of anger from the anger that is triggered by a person who is upset because another person did better than them in some form of competition or other context involving some valued form of social comparison. In effect, Von Hirsh and Jareborg (1987) have provided an excellent example of the differences between motivational conflicts and moral conflicts previously identified by Schoeman (1987) as misuses of principles of social causation in making moral judgments. That is, not all provocations that cause a behavior are appropriate forms of mitigation. In order to give due weight to the prior concerns, mitigation professionals have to take into account the diverse pressures experienced by people in their varying social environments. Different social contexts can support different subcultural ideologies. Social scientists have documented the existence of a number of contrary moral mandates in societies that can have differential effects on how people justify various beliefs and actions, depending on their social position in that society (Bandura, 1999). For instance, Robert Lynd (1939) documented a number of these moral contradictions in his seminal work, Knowledge for What? The Place of Social Science in American Culture. In this book on social science, he documented forms of knowledge or information in our culture that lead to different kinds of social adaptation. Examples of moral contradictions: Everybody should try to be successful. But: The kind of person you are is more important than how successful you are. The family is our basic institution and the sacred core of our national life. But: Business is our most important institution, and, since national welfare depends upon it, other institutions must conform to its needs. (Lynd, 1939, pp. 60–61) These contradictions help explain the different justifications for very different types of beliefs and actions adopted by people living in a diverse society. Justifications are a fundamental aspect of social life in all societies, and this is a fundamental

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reason why the documentation of social knowledge is considered a key project for social scientists. In the field of mitigation, practitioners need to investigate how defendants are justifying their actions, because some of these justifications involve relevant moral conflicts, as well as different potential losses or threats to the individual’s person that are germane to a distinct social context. Imperfect justifications can elicit sympathies in jurors in ways that some deterministic or causal explanations of the defendant’s criminal actions cannot. Research has shown that processes of justification used to perpetuate prejudicial attitudes and behaviors do not differ from processes involving justifications employed to support political ideologies in prison or in other subcultures involving various types of social deviance (Lofland, 1968). They also support commonly observed political ideologies, attitudes, and behaviors adopted by individuals exposed to many of our mainstream social institutions. Any society contains a fund of knowledge available for use, and a person’s social history has very important implications for helping us understand how this information influenced the life choices and life chances of individuals and their families from that society. This is especially true of mitigation professionals, because they need to explain how the fund of knowledge in the defendant’s environment helped them to justify engaging in violence against another person.

The Relevance of Gang Justifications for Developing Mitigation Themes

Individuals in gangs typically appeal to higher loyalties that are supported by a distinct fund of knowledge that is part of our broader culture, which can be overlooked by persons raised in more privileged environments (Durkin, 2001; Lyman, 2001; Sykes & Matza, 1957). These higher loyalties include moral virtues that are advocated by the wider society (honor, trust, commitment, and love), but are configured in ways that support actions that are considered crimes by that same community. For instance, many prisoners take moral pride in sanctioning other prisoners who violate the prison’s moral code. Gang members, in these circumstances, believe that they are acting much like sheriffs or police officers who are responsible for enforcing rule violations (Price III, 2005). In these contexts, they are not trying to excuse their behavior. Instead, they believe that their behavior is justifiable because of the victim’s participation in wrongful actions that triggered understandable moral outrage. In these circumstances, the prisoners do not deny responsibility for their behavior, but argue that the behavior was justifiable in terms of the prison’s code of conduct and value system (Durkin, 2001; Lyman, 2001). An honorable or heroic act under this code can be easily misunderstood by persons from the wider moral community when members of gangs provide

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accounts for their behavior that indicate that they did not believe that the victim was a victim. In their life world, the person was sanctioned because he or she violated a sacred moral mandate valued by members of the prison community. I found some of the reactions to the conviction of (Penn State football coach and pedophile) Jerry Sandusky interesting. Some pundits alluded to the justice that he would probably receive in prison for his sexually abusive crimes. This type of sentiment sends mixed messages about appropriate societal values for prisoners. That is, it provides support for many of the justifications employed by prisoners to deny victimhood to sexual offenders. Indeed, these statements offer rationalizations that prisoners can adopt when executing attacks against sexual offenders in prison. Moral conflicts, gangs, and prison life Most individuals have to be “schooled” about the prison’s code of conduct and its harsh blaming and accountability mechanisms upon entering this distinct social system. This socialization process is referred to in the penal and criminological literature as prisonization (Gillespie, 2003). Because these mechanisms of socialization are not shared by the general moral community, prisoners are forced to choose between competing moral mandates about appropriate attitudes and actions. What would represent legitimate actions and expectations for life in prison are not equivalent to the expectations for life in the broader moral community. Life in prison has its own rules and social organization. Prisoners confront substantial challenges about identity matters in responding to these expectations that cannot be overlooked by mitigation professionals in developing appropriate mitigation themes. Social life in prison involves dynamics of conflict, fear, and power that differ in many ways from social life in the general moral community (Edgar, O’Donnell, & Martin, 2003). Any inmate entering a prison has to determine how to prioritize his commitments and loyalties while living in an environment that is dominated by challenges involving serious degradation and violence. Are they going to be loyal to the administration or to the prison code of conduct? Do they give priority to their own goals and objectives for securing an early release from prison, or to their cell-mate, or other members of their race? Prisoners, not unlike individuals living in the broader moral community, encounter many different types of conflicting moral mandates for constructing their roles and identities. Some of these mandates place pressures on prisoners in ways that are potentially mitigating. This is one of the reasons why the Supplmental Guidelines (2008) do not overlook addressing the realities of prisions in developing mitigation evidence. Correctional officers often give deferential forms of respect to members of prison gangs with significant histories of violent behavior. By these actions, the correctional officers are reinforcing identities that the system in theory should be

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mobilizing all of its resources to change. These actions by the administrators and their staff provide a level of respect for an identity that has additional benefits for inmates seeking a place within the prison society. These kinds of actions are problematic because many young offenders are tempted to become members of prison gangs to obtain respect, mutual forms of protection, support, and access to needed resources to help cope with the severe deprivations associated with life in prison. When inmates observe this type of deference to gang leaders by prison authorities, they are given an additional incentive to become a gang member. The authorities are demonstrating how his or her identification with a gang represents a recognized resource for maintaining some semblance of self-respect from prison authorities. Arizona is a state in which prisoners have had a long history of involvement in the control of other prisoners (Price III, 2005). This potentially troublesome situation has existed in other states as well. The upshot is new inmates learn that gangs have power not only over other inmates, but also in dealing with prison officials. In many states, prison authorities often approach gang leaders to help in regulating and in controlling the behavior of other inmates. In doing so, these authorities are encouraging and expecting these gang leaders to employ aggressive conduct, or threats of aggression, to control members of their race—most of the prisons in the United States are socially organized around racial divisions. The leaders of the gangs in prison are expected to discipline inmates of their own race who are involved in conflicts with individuals from other races because these conflicts can lead to prison wars. Though authorities see the ends as justifying the means in dealing with these types of matters, the prison institution is in effect encouraging the gang to exercise its questionable norm of “might equals right” in implementing its mechanisms of social control. This type of response by prison authorities sends mixed messages to the members of gangs, as well as other inmates and members of the correctional staff. These mixed messages become the cognitive and symbolic materials available for the continual justification of convict codes of conduct and other questionable moral concerns in the eyes of the wider moral community. Any individual who becomes a gang member will adopt moral justifications that are consistent with the social organization that dominates life within the walls of his or her particular prison. The transition to this life (and its distinct moral mandates) can be less difficult for persons who were brought up to respect the code of the streets (see Anderson, 1999). This form of vulnerability of some offenders is something that jurors need to appreciate in order to understand the appeal of prison gangs and its relevance in penalty determinations. Street life involves many social processes and beliefs about the use of physical aggression that significantly overlap with life in most prison settings. Street life at one point in time was more

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distinct from prison life, but we are seeing closer connections between the institutions of the streets and the prison institution (Hagedorn, 2008). One of my prior clients who became a ranking member of an Arizona prison gang had an upbringing that made prison life an easy transition from his life in the community. Aggression and support of members of one’s racial group was a social institution in the community where his character was formed. He was raised in a violent public housing project where he was completely indoctrinated in the code of the streets, and he developed significant social capital with persons with whom he eventually had contact while in prison. When he was committed for the first time to a juvenile correctional facility, he was immediately challenged to defend himself from attacks from individuals from other races and neighborhoods. He had excellent boxing and fighting skills, and this background helped him cope with these threatening experiences. Because he was quite skilled in handling personal threats, other friends from his barrio sought his protection from the attacks of other powerful youths within the system. My client believed that he served a noble function in the juvenile system when he defended weaker kids from his neighborhood against attacks by individuals of other races and from other parts of the city. He believed that the system was very unfair to individuals who lacked mutual forms of support and defense from other predatory individuals and groups in the juvenile justice system. For this reason, he started protecting a number of weaker kids whom he knew from his neighborhood. In his view, the juvenile correctional system was much more predatory and scary of a place than the adult justice system, given the adult system’s established racial institutions of mutual support and defense. When my client entered the adult system, he was impressed by how the Arizona New Mexican Mafia looked after other members of La Raza (“The Race,” persons of Mexican descent). They protected the younger members of his race from attacks by other races, as well as attacks from the predatory actions of members of their own race. In fact, the Arizona New Mexican Mafia developed in order to protect younger Mexicans from sexual and the other forms of abuse perpetrated by members of the original Arizona Mexican Mafia. My client believed that “La Eme” (the Mexican Mafia) provided a system of justice in the prison yards. When La Eme controlled the yards, it did not allow stronger individuals to “mad-dog” a younger and more vulnerable Mexican. In his view, this system of justice was much fairer than the system that he observed in the juvenile justice system, which he considered predatory and unpredictable. In my client’s opinion, many of the violent actions taken by members of the Arizona New Mexican Mafia were morally justified. They involved actions directed at the enforcement of the gang’s rules (las reglas) or directed at violations of norms

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involving relationships among inmates on the yard about improper drug deals, unpaid gambling debts, or other forms of noncompliance with prior agreements among inmates. If a person did not seek resources from the gang or had not failed to comply with established obligations with other inmates on the yard, then he was unlikely to have any problems with the Mafia. In other words, his description of the Mafia did not involve the types of extortion and other forms of exploitation traditionally emphasized by law enforcement. However, he did not deny that his gang dealt differently with persons who were involved in politics within the prison society than with individuals who were not. In his view, extortion tended to occur in contexts involving conflicts over power about business issues related to the streets or within the institution, which he saw as morally justified. Gang killings and potential directions for mitigation When a member of a prison gang commits a prison killing, it is important to identify any moral conflicts surrounding the offense that result from their differential social commitments and identifications. According to Arenella (1992, p. 1525), unfair attributions of character occur when a person lacks “self identification as a participant in the community’s blaming practices.” His viewpoint is also consistent with views of Narvarez and Lapsley. They wrote: The self does not experience a sense of obligation or responsibility to act in isolation but with others within a cultural setting. One’s sense of identification with the group and its communal norms will generate a moral atmosphere that either conduces to moral formation or undermines it. Hence moral self-identify is a matter of group identification and shared commitment to its value-laden norms. The moral self identifies with the community by speaking on behalf of its shared norms and by taking on its obligations as binding on the self. (2004, p. 38) In examining a prison crime, the background of the defendant is relevant to understanding the character and the motivations of the offender. One potential role of mitigation professionals in these cases is to clarify the distinct characteristics of a prison’s cultural and social context, as well as the constraints that this setting places on the defendant’s identity and life choices. Many of their choices reflect pathologies that are consistent with how the institutions are organized by the authorities who are responsible for these inmates. Their behavior can also reflect the society’s failure to provide appropriate forms of support and integration within the society’s broader social institutions (Solivetti, 2010). Inasmuch as jurors do not support the actions of gang members, they also can experience moral

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outrage about how authorities manage prisons and about the types of behaviors in which prison authorities are likely to play a complicit role. They can also have similar reactions to the ways the society failed in its socialization and other duties towards a gang member. Though the offender’s background, cultural beliefs, and history are not relevant in adjudications of a defendant’s guilt in prison-related cases, they are relevant for selecting an appropriate punishment. Prison cases require extensive investigations into contextual pressures that place important constraints on the defendant’s choices. Clearly, the background of a gang-affiliated offender can aggravate or mitigate calls for just deserts or leniency in selecting an appropriate punishment in these types of cases. For this reason, the presentation of this type of evidence involves a number of important strategic dilemmas. “Presumably, a defendant who ‘ought to know better’ will have his background treated as an aggravator, whereas a defendant raised in a culture where the behavior was tolerated or encouraged might have his background treated as a mitigator” (Held & Fontaine, 2009, p. 250). It is often questionable how much youth who were raised in communities with strong connections to street and prison values “ought to know better.” However, this assumption will not be necessarily true if emotions of outrage are activated because of the defendant’s bad character and voluntary choice to become a gang member. In many capital cases involving prison murders, the social cultural context and its distinct pressures are important sources for mitigation when the pressures involve distorted cultural commitments and identifications. Many gangs members were not afforded fair opportunities to develop self-concepts that would insulate them from the pushes and pulls to participate in these mutual support groups with high levels of value in prison social systems. Reputational issues take on increased significance within prisons, and the individual’s background will play an important role in how defendants adjust to threats to their masculinity and reputation among the other inmates. Loss of face can be life-threatening in most prisons. The form of mitigation that we are describing for potential development by mitigation professionals in prison gang killings is consistent with the third element in the “triangle model of responsibility” developed by Schlenker and his colleagues (1994). They wrote: Accountability involves an evaluative reckoning in which individuals are judged. All evaluative reckonings require that the evaluator has information about three key elements and the linkages or connections among them (Schlenker, 1986; Schlenker & Weigold, 1989; Schlenker et al., 1991). These elements are (a) the prescriptions that should be guiding the actor’s conduct

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on the occasion, (b) the event that occurred (or is anticipated) that is relevant to the prescriptions, and (c) a set of identity images that are relevant to the event and prescriptions and that describe the actor’s roles, qualities, convictions, and aspirations. . . . Knowing the context for an evaluation means that one needs information not only about the event itself but about the prescriptions that are deemed relevant and the characteristics of the actor who is involved. (Schlenker, Britt, Pennington, Murphy, & Doherty, 1994, pp. 634–635) The developers of the triangle model are arguing that “the combined perceived strength of the three linkages among the elements determines how responsible the actor is judged to be on the occasion” (Schlenker et al. 1994, p. 635). If the person is playing a role in which the prescriptions for an event are not clear (like in many prison events because of the previously mentioned subcultural and other conditions associated with prison life), then this lack of clarity has important implications for examining the strengths of the linkages between the events and the prescriptions for those events. Indeed, the lack of strength between the person’s identity and the prescriptions for behavior in prison is an important mitigation issue. The person’s identity is also linked to the event (prison violence) and to the prescriptions that are used to evaluate his responsibility pursuant to the triangle theory of responsibility. In the triangle theory, an understanding of either the event or the prescriptions cannot be properly understood without some knowledge of the person’s identity. His identity serves a critical role in examining two key elements in the triangle model of responsibility, which is why we beleive idenity issues cannot be ignored in developing narratives of mitigation. In order to examine the contributions of the defendant’s identity, the social-history investigation should play an important role. In Chapter 5, we described how and why a defendant’s identity should play a determining role in integrating mitigation evidence within a defendant’s mitigation narrative. Information about a defendant’s identity provides an important link not only to a defendant’s character, but also to a defendant’s motivations. The triangle model contends that any efforts to minimize the strength of the links between prescriptions and a person’s identity can serve to diminish the individual’s level of responsibility (Schlenker et al., 1994). This focus on diminished links between prescriptions (norms, laws, and values) and identity is a fundamental strategy that mitigation professionals can adopt in presenting sociocultural themes of mitigation. Mitigation professionals have to focus on the nature and quality of the defendant’s lack of identification with the broader moral community and how this lack of identification was formed when addressing many

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prison-oriented crimes. Nevertheless, ordinary citizens can easily ignore themes involving alternative norms, values, and identity commitments because of the anger that gang involvements often trigger in persons who judge gang members based on their background and moral commitments. When this type of reaction is primarily fueled by emotions of outrage, then any appeals to making a moral response to the defendant’s crime based on an objective evaluation of the mitigation evidence will be significantly compromised (Tetlock, 2002). This type of response is especially likely when prosecutors prime the jury for developing moral outrage because of the nature of the offender’s crime and/or group identifications. For this reason, it is very important for mitigation professionals to have some knowledge of social frameworks that can activate competing responses to these easily primed emotional reactions to highly stigmatized groups, like prison and urban gang members. To this end, recent developments in the field of attribution theory can provide some helpful insights and support for such efforts. However, the research program in this area is in its embryonic stages of development. New Developments in Attribution Frameworks

The innocence projects have brought to light many of the wrongful convictions and other serious errors committed by our justice system. Defense attorneys hope that these developments have prompted prospective jurors to be much more cautious about making these types of errors. In addition, the average member of a jury probably has heard the famous adage of William Blackstone (1763) that it is “better that ten guilty persons escape, than that one innocent suffer (Volokh, 1997, p. 178). Yet these viewpoints about avoiding errors in making punishment decisions are often overshadowed by other competing beliefs and viewpoints about punishment that should not be overlooked by mitigation professionals. Prosecutors can easily activate a punitive mindset that leads to motivated forms of reasoning that are closely associated with two goals of punishment: “the more impulse, anger-charged, value-expressive goal of retribution and the more calculating instrumental goal of general deterrence” (Tetlock et al., 2007, p. 196). Blame and culpability judgments are considered social judgments (Shaver, 1985; Tilly, 2008). “Blame only makes sense when some relations exist between the blamer and the blamed” (Tilly, 2008, p.5). For this reason, it is important for investigators of blaming processes to have some understanding of the nature and quality of the relationships involved in any blaming process. Some mitigation professionals assume that jurors will approach their role like an intuitive scientist in selecting an appropriate moral punishment. An intuitive scientist would weigh the validity of causal explanations, including theories of social causation. Even

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though lawyers and expert witnesses hope that jurors will adopt the role of an intuitive scientist in assessing issues of social causation, mitigation professionals cannot ignore the fact that prosecutors obviously are going to prime other types of responses. Indeed, mitigation professionals have to be sensitive to the fact that jurors can be at risk of adopting the role of an intuitive prosecutor and not the role of an intuitive scientist in carrying out their duties in a capital case (Tetlock, Self, & Singh, 2010). This risk results from the nature of the relationship that is established between a juror and a defendant in a capital case. Hamilton (1978, 1986) established the significance of taking into account the role of the actor in any judgments of responsibility, which Tetlock (2002) has extended to making judgments about the role of the observer in social judgments of blame and punishment. For our purposes, the observer is acting in the capacity of a juror who has a role and corresponding responsibility of defending community values and norms. If this is the primary role adopted by a juror among a potential mix of goals, then that juror’s decision-making will differ from that of jurors who adopt other, equally compelling roles associated with the criminal legal process. Different metaphors governing judgment and decision-making (JDM) Functional theories of human judgment and decision-making (JDM) initially assumed that humans in many social contexts function primarily as naïve scientists because they need to be able to predict the behaviors of others in order to have some sense of control over their lives (Heider, 1958; Kelly, 1971). However, Tetlock (2002) has constructed a social functional approach to human JDM processes that is predicated on the assumption that there are many different metaphors, besides the metaphor of an intuitive scientist, for studying JDM processes. He has established a specific program of research that focuses on three distinct metaphors for examining matters of social judgment and choice specific to context involving varying types of social accountability: the intuitive politician, the intuitive prosecutor, and the intuitive theologian. Tetlock’s (2002, 2003) approach offers alternative metaphors for structuring our understanding and prediction of human judgment processes in the field of capital mitigation. His metaphors are predicated on the assumption that accountability is an ever-present element in human social relationships. This feature of social life applies to the context of blame and punishment and why we believe it offers useful metaphors for describing potential reactions to the accounts proffered by defendants in the mitigation of their punishment. Answerability (or liability) is the component of the criminal process that focuses on issues of accountability

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in judgments about degrees of blame and punishment (Schlenker et al., 1994). Tetlock wrote: Many investigators, for example, assume that people can be viewed as “intuitive scientists” (whose major goal in life is to understand the world around them) or as “intuitive economists” (whose major goal is to maximize subjective expected utility). If people are “good scientists,” they should refrain from jumping to conclusions from fragmentary evidence, change their minds when confronted with contradictory evidence, and consider arguments both pro and con in gauging their confidence in their beliefs. If people are “good economists,” they should acknowledge difficult value trade-offs, ignore sunk costs in deciding whether to stick with the status quo, and factor in opportunity costs in evaluating options. There is little place in either theoretical framework for exploring the social content, context, or functions of judgments. (1995, p. 16) The last sentence in the prior quotation reflects the fact that many researchers have not given due regard to the social and political functions of thought in different judgment contexts. In response to this oversight, Tetlock (2002) has developed a social-functionalist approach to human judgment and choice processes that takes into account the contributions and the needs of the society in which social accountability judgments are made. Tetlock’s (2002) functionalist approach is consistent with some of the observations of classical sociologists (Durkheim, Weber, Mead, and Parsons) about the functions needed to maintain collective forms of social life. He identified three specific functions that he considered “adaptive imperatives of collective life” (Tetlock, 2002, p. 453). First, humans have to cope in collective social life with “accountability demands from others with whom one is intertwined in reciprocal networks of interdependence” (Tetlock, p. 453). Second, people need to enforce and defend the rules of society that serve the function of social control (the key function underlying the mindset of an intuitive prosecutor). Third, people need to defend the legitimacy or sacredness of their society’s rules “to stave off anomie, alienation, and even existential despair” (the function underlying the protection of sacred values [SVPM] model that Tetlock [2003, 2003] developed germane to an intuitive theologian mindset). For our purposes, the two metaphors with the greatest applicability to capital mitigation practice are the intuitive theologian and the intuitive prosecutor. Each of these metaphors is consistent with social intuitionist approaches to investigating moral judgments (Alicke, 2000; Hadit, 2001, 2012). Social intuitionists,

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including Tetlock, contend that social judgments, reasons, and justifications tend to follow spontaneous emotional reactions to events (Alicke, 2000; Hadit, 2012). Hadit (2012) has used the metaphor of “the emotional dog and its rational tail” in characterizing this approach’s conceptions of moral judgment processes. Social intuitionist approaches to JDM differ from rational-choice approaches in psychology, economics, and sociology that are very common in the field of law and social science. “What is often considered error or bias by earlier theories may be reinterpreted as eminently rational given the social-functional motives that lay behind the phenomena in question” (Nicholls, 2009, p. 1). Social intuitionist approaches take into account the role that our emotional bonds to our group(s) play in our reasoning and other judgment processes. Haidt (2012), for example, has documented how factors that bind individuals to groups can also blind them from making rational judgments. That is, the emotions that bind a person to a society are what can influence how that person is likely to respond to violations of that society’s valued norms, which can deviate substantially from established conceptions of rationality. Group attachments or bonds influence how people make moral judgments. The role of attachments to political groups in various judgment processes and contexts has been supported by Tetlock’s program of research and other programs of research on morally related concerns (see, e.g., Haidt, 2012). The findings in each of these areas of research illustrate that many decisions that were considered irrational in most rational-choice models of human behavior can be considered rational when we employ a social-functional lens.

The Intuitive Prosecutor Mindset

The intuitive prosecutor mindset is organized around the functional “premise that people seek to defend rules and regimes they endow with legitimacy” (Tetlock, 2002, p. 461). The research of Tetlock and his colleagues demonstrates that the intuitive prosecutor mindset tends to be activated by the following conditions: Observers shift into this mindset to the degree they have been induced to believe, or were predisposed to believe that (a) norm violations are widespread; (b) violations are intentional; (c) violators are flaunting their contempt for shared values (d) violators are routinely escaping punishment; (e) the social order is legitimate; (f) the norm violations offend shared moral values. (2007, p. 196) In other words, when the above conditions were manipulated in social psychology experiments, Tetlock and his colleagues were able to activate an intuitive

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prosecutor mindset. However, there were some anomalous findings that suggested the existence of other potential metaphors that are premised on different functional metaphors (Nichols, 2009). Nichols (2009) set out to determine whether the intuitive-prosecutor metaphor had an alter ego, based on some observed anomalies in Tetlock’s program of research on the intuitive-prosecutor metaphor. He detected in some of Tetlock’s research the potential existence of another metaphor that explained the variations observed in these studies that did not square with the predictions of the intuitive-prosecutor metaphor. In response to these observations, he posited the existence of an intuitive-defender metaphor that explained some of the unexpected findings in some of Tetlock’s prior research. Nichols wrote: A major thesis of this dissertation is that not only may authorities face opposition to the enforcement of norms or laws that are widely perceived to be unjust . . . , but also when the methods employed in norm or law enforcement are perceived as going too far, it can reduce the support of many people for the vigorous enforcement of even norms or laws whose legitimacy is generally unquestioned. When authorities go too far in attempts to enforce the norms or laws of the existing order, a mindset counter to that of the intuitive prosecutor can be activated: that of the intuitive defender (Nichols, 2009, p. 16). In effect, his research found empirical support for a metaphor that had a lot in common with some of the other philosophically based arguments previously presented in this chapter about conditions in which authorities or institutions provided inappropriate forms of support for universally disproved actions. Specifically, he was able to manipulate conditions in his dissertation research that elicited an intuitive-defender mindset rather than an intuitive-prosecutor mindset, which called into question the legitimacy of the actions of the authorities examined in his study. We believe that if practitioners in the field of capital mitigation can identify potential themes (conditions) for deactivating the intuitive-prosecutor mindset, then they can approach the process in a more systematic and thoughtful fashion. For this reason, it is our contention that Tetlock’s program of research on the intuitive-prosecutor mindset offers an excellent characterization of some of the key constraints confronting mitigation professionals in presenting themes of social mitigation. He has demonstrated that there are situational and dispositional triggers for the activation of an intuitive-prosecutor mindset. Moreover, his research shows how people from different political and cultural groups are more disposed to having an intuitive-prosecutor mindset. For

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instance, the mindset is easily triggered in persons from a conservative political ideology. Moreover, Tetlock (2002, p. 461) has described an exculpation continuum that ranges from “the conscientious jurist (who draws conclusion about culpability only after dispassionately weighing the evidence) to the capricious, vengeful, or opportunistic prosecutor (who permits mean-spirited or self-interested motives to taint evaluations).” In 2007, Tetlock and his colleagues tested a model that strikes a balance between these polar opposites. They labeled this model the “fair-biased-correcting model that tests competing propositions about how people function as an intuitive prosecutor.” The results of this research uncovered a “chronic ideological variation in the mindset.” Persons who are disposed to this mindset “punish norm violators more harshly, hold them more responsible, and are angrier at them to the degree that either participants have been induced to believe that the social order is under siege or participants were already predisposed to this view” (conservatives) (Tetlock, et al., 2007, p. 201). Moreover, the results from the testing of this model indicated a more nuanced picture of how the intuitive-prosecutor mindset operates. They wrote: Results indicated that people in the prosecutorial mindset were (a) less moved to leniency by extenuating circumstances but more moved to punitiveness by exacerbating circumstances (evidence that intuitive prosecutors were not oblivious to context, just selective in which cues they used; (b) more punitive as the severity of the consequences of an act mounted, holding intentionality and foreseeability constant (extending past work on the severity effect—Burger, 1981); and (c) less interested in overturning verdicts whether there had been a violation of procedural justice that could be dismissed as a “technicality.” It was difficult, however, to activate the prosecutorial mind-set when people sympathized with the violator or were reminded of the dangers of false convictions. (Tetlock et al., 2007, p. 463) I believe one of the primary results of Tetlock program of research, which has important implications for mitigation practice, was the outcomes in his research involving manipulations of conditions of accountability. The results of these experiments indicated that selected manipulations could motivate intuitive prosecutors to be more reflective, but their cognitive reflection tended to justify many of their initial feelings and group-related attachments, rather than to give proper weight to relevant mitigating circumstances. This type of finding has led Tetlock to conclude that intuitive prosecutors tend to carry out their reasoning to per-

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suade rather than to discover the truth (Hadit, 2012). Regarding Tetlock’s research program, Hadit wrote: Accountability increases exploratory thought only when three conditions apply: (1) decision makers learn before forming any opinion that they will be accountable to an audience; (2) the audience views are unknown, and (3) they believe the audience is well informed and interested in accuracy. (2012, p. 76) When issues of accuracy are stressed, individuals are more likely to engage in reflective judgments, which can minimize the kinds of outrage that will either increase their punitive disposition or increase reasoning directed at the goal of protecting sacred societal values. However, the results do show that increased reflection does not necessarily lead to more valid judgments. Increased reflection due to manipulating conditions of accountability can also increase biases in individuals who are disposed to this particular mindset. That is, they can develop much more refined justifications for their retributive goals for punishment. “Activation of the prosecutor mind-set produces moral outrage, negative attributions about the character of the norm violators, and goals to see them punished on behalf of the collectivity by its legitimate representations” (Nichols, 2009, p. 10). However, the results also indicate that the mindset can be deactivated when persons do not believe the social order is in jeopardy or that similarly situated individuals are getting away with crime without being punished. Overall, the initial research on the intuitive-prosecutor metaphor shows how important it is for mitigation professionals to have some understanding of the types of conditions that can deactivate the intuitive-prosecutor mindset.

Summary

This chapter has focused on the motives behind criminal intents and identified potential mitigation themes for persons involved in gang activities, with a specific focus on prison gang crimes. The chapter reviews the moral significance of crimes that have institutional forms of support and argues that these socially caused crimes are less blameworthy than other types of crimes that are socially caused. It also identifies elements in motivations for crimes that are connected to contexts in which the non-use of aggressive responses poses significant forms of loss and threat to individuals living in environments that are governed by either the code of the streets or the code of the prison. The constraints placed on the life choices

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of persons in these contexts are potentially mitigating, but they involve significant forms of social stigma that can lead to very punitive responses by societal representatives. The chapter concludes with a review of the social-functionalist framework that is providing some promising guidance for understanding the potential responses of jurors to aggravated crimes of murder. In order to deactivate the mindset of the intuitive prosecutor in these cases, Tetlock (2002) described conditions that can activate this type of response in persons who are charged with defending the norms of our society or who disposed to this type of outlook. His research has also identified conditions that support a number of the social themes covered in this chapter and in Chapter 7 that can deactivate the intuitive-prosecutor mindset, which is a essential goal of practitioners involved in the field of capital mitigation practice.

Conclusions and Research Needs

the social frameworks examined in this book offer mitigation professionals social lenses for conceptualizing issues of blame and culpability that are rooted in social science, legal theory, and moral philosophy. These social lenses differ from legal frameworks that ignore the influences of character and motivations in making moral judgments about an agent’s culpability. They support current principles in capital sentencing that assume that sentencing authorities should not abstract the individual from his or her context in selecting a morally appropriate punishment. In addition, they contain concepts that can foster new directions in social science research with implications for developing a special focus on practice issues in the field of socio-legal mitigation. The social frameworks that we included in this book were predicated on the assumption that morality is a “cultural structure” (Baumeister, 2005; Baumeister & Exline, 2000; Stets & Carter, 2012). Indeed, “morality represents cultural codes that specify what is right or wrong, good or bad, or acceptable or unacceptable in a society” (Stets & Carter, 2012, p. 121). This assumption takes for granted that conceptions of morality are influenced by variations in culture and variations in time (history). A fundamental aim of this book was to demonstrate how these factors (culture and history) can play an important role in assessing the lives of capital offenders. Concepts of right and wrong are not independent of the groups in which people live their lives, including the times, places, and locations where their lives unfold. 183

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These assumptions about culture and morality are consistent with a long-standing proposition in sociology and social psychology that the individual nature of a person depends on the society and culture in which that person lives, including that person’s moral propensities and identities (Burke & Stets, 2009). Burke and Stets wrote: Imagine the kind of individual you might become if you lived in a changed (different) society, for example, Nazi Germany or in an Eskimo clan at the turn of the century. Imagine how different you would become growing up in such a society, the nature of the individual depends upon the society in which he or she lives. (2009, p. 3) The changes that we would observe in your nature if you lived in a different sociocultural context would reflect the distinct moral challenges and circumstances of that context. This book assumes that context shapes personality, identity, and life choices. It also assumes that we cannot understand a defendant’s choices without understanding the relationship between a defendant and his or her sociocultural context. The Supreme Court of the United States currently expects defense teams in capital cases to present mitigation evidence to sentencing authorities that take into account the diverse frailties of humankind. In Woodson (1976, p. 304), the Supreme Court struck down mandatory sentences because this kind of approach to sentencing “treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to blind infliction of the death penalty.” Potential failures to individualize social contributions to the life experiences of a defendant in the sentencing process was the problem that this book was designed to address. To be precise, we wanted to provide practitioners with concepts for guiding the collection and presentation of social, social psychological, and cultural forms of mitigation evidence. Mitigation professionals have not developed a consensus about methods for presenting information about the unique frailties, events, and conditions possessed by capital defendants. Some mitigation professionals are effective in developing chronologies of a defendant’s life events, experiences, and mental or emotional conditions, but they often fail to move beyond the abstract treatment of this type of evidence. This can occur, for example, when mitigation evidence is not contextualized in ways that help sentencing authorities appreciate the unique aspects of the defendant’s abuse history or other relevant forms of potential mitigation. In order to circumvent this form of misguided practice, we argued that the social history investigation should include a systematic assessment of the set of identity

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meanings that a defendant attributes to events, personality traits, roles, or other relevant forms of mitigation evidence. This recommendation is predicated on the assumption that a defendant’s identity is best defined as “the set of meanings that define who [a defendant] is when [a defendant] is an occupant of a particular role in society, a member of a particular group, or claims particular characteristics that identify him or her as a unique person” (Burke & Stets, 2009, p. 4). We adopted this position because we believe that the unity of any mitigation narrative is heavily dependent on how the defense team links the defendant’s identity with the multiple events and trajectories that make up a defendant’s life story. As storytelling animals, we want to see these links to identity meanings in our moral evaluations of human acts (MacIntyre, 1993). In effect, many of the arguments proffered in this book assume that identity is an important adhesive for connecting the misfortunes of life contained in an offender’s mitigation story to an actor and the actor’s engagement in a specific event at a specific moment in time or in a specific life trajectory that best describes a key component of a defendant’s mitigation narrative. Without this type of adhesive, a juror can presume that a defendant is unworthy of life. In our opinion, whenever events in a defendant’s life are isolated from specific identity meanings, we have not done a good job presenting that person’s unique human qualities, which was a key theme that we examined in Chapter 5. The social role and the identity meanings of a defendant who is performing that role is what the penalty phase of a capital case is intended to help jurors understand. Everyone convicted of a specific crime is not playing the same social role and does not adhere to the same identity meanings within that role. Variations in roles can be attributed to different sociocultural contexts. For instance, the role of a street gang member in the United States can differ substantially from the role of a gang member in Columbia, South Africa, or India. However, even within these societies that might have shared definitions of roles for gang members, variations will exists in the execution of these roles based on variations in role identities. Role identities are the sets of meanings that a person attributes to a specific role. Burke and Stets wrote: Individuals have meanings that they apply to themselves when they are a student, worker, spouse, or parent (these are roles they occupy), when they are member of a fraternity, when they belong to the Democratic Party, when they are Latino (these are memberships in particular groups), or when they claim they are outgoing individuals or moral persons (these are personal characteristics that identify themselves as unique persons). People possess multiple identities because they occupy multiple roles, are members of

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multiple groups, and claim multiple personal characteristics, yet the meanings of these identities are shared by members of society. Identity theory seeks to explain the specific meanings that individuals have for the multiple identities they claim; how these identities relate to one another for any one person; how their identities influence their behavior, thoughts, and feelings or emotions and how their identities tie them to society at large. (Burke & Stets, 2009, p. 3) In essence, we have argued throughout this book that mitigation professionals have an obligation to link a defendant’s identities to the socio-legal themes of mitigation described in this book. Clearly, issues of moral luck and social misfortune are relevant forms of mitigation, but they will not resonate with jurors if they are not linked in some way to the misguided or the “non-sane self” identities (described in Chapter 7) that emerged in response to corrupting or other kinds of unfair life circumstances. Indeed, the juror has to see life through the eyes of the offender in order to get a better sense of the offender’s strengths and weaknesses. They also need to know why the individual made the choices he or she made and what moral conflicts and social pressures he or she felt in making those choices. This approach assumes that themes involving moral concerns are more likely to succeed than themes involving strictly social causal explanations of a defendant’s behavior, which is an important unverified theme that was described in this book that warrants further empirical scrutiny by social scientists. All too often, mitigation professionals are very effective in identifying flaws in the moral character of an offender, but not as effective in showing how the flaws developed and changed over time, as well as how they interacted with other individual strengths and virtues that can provide a broader understanding of the offender and his or her frailties. Did the offender develop a flaw in his or her character in response to extraordinary forms of disadvantage or oppression? Was the manner in which the offender reacted to the unfair circumstances an understandable human response given their lack of exposure to appropriate moral safeguards (refer to Litton, 2005, and to Chapter 8)? Were the defendant’s perceptions heavily influenced by a set of cognitive distortions (described in Chapter 6) that developed in response to corrupting environmental constraints that would have had similar effects on just about anyone who was exposed to that type of unfortunate formative context? Was the wrong act committed by the defendant for misguided justifications that were supported by family members or other kinds of authority figures (see Chapter 8)? In my view, these kinds of considerations are much more likely to be included in descriptions of

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character and mitigation narratives when lawyers have compelling results from a systematic assessment of an offender’s set of identity meanings. With this type of evidence, they are in a much better position to select the most appropriate mitigation narrative that conforms to the evidence documented by mitigation specialists and expert witnesses. In the practice of mitigation, the lawyer is responsible for telling the story, and the mitigation specialists and expert witnesses are responsible for educating the lawyers and jurors about the defendant’s background. With valid evidence about the defendant’s background, the lawyer is in a better position to provide a highly rich and individualized description of the person who committed a very serious act at a specific point in time, regardless of some of the highly incriminating factors that may surround the actual offense. In fact, the contextualization of these factors should not be denied when developing strategies for approaching a person’s mitigation story. In many cases, these aggravating factors have to be disputed and connected in some way to the person’s background. Moreover, the person’s background ought to explain in some way why the person’s acts are less disturbing once they are placed in a broader context. Mitigation professionals assume that at the crux of any evidence of mitigation is a story “that began not at the time of the offense but years, and sometimes generations, earlier” (Norton, 1992, p. 47). Without this type of approach, unfair attributions of character are much more likely to occur in keeping with the kinds of mischaracterizations previously described in Chapter 7. Inasmuch as we have considered identity an important organizing and integrating concept, we recognize that issues of identity and character are not widely embraced by all lawyers and mitigation specialists. In our view, many practitioners are hesitant to address these concerns because they have not been given solid evidence that would help assuage some of their concerns about confronting character issues. Most mitigation professionals have an intuitive understanding of the problems surrounding bad character, and as a consequence, they tend to avoid addressing or disputing this kind of information whenever possible. Bad character typically triggers negative responses in jurors. Moreover, there is a compelling body of evidence that shows that people are much more outraged when certain acts are committed by people with bad characters than when the same acts are committed by people with good characters (Lee, 2009; Nadler & McDonnell, 2012). In spite of this important reality constraint, we also know of many cases in which individuals with bad motives and with bad characters have had their lives spared (Stetler, 2007). Yet there is no current research program in the social sciences that is trying to uncover the factors that are likely to increase this kind of result.

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When we submitted the proposal for this book for consideration for publication, we had a few reviewers of our proposal warn against addressing issues of character in a book on mitigation practice. They argued against reviewing the literature on moral development and character because they believed that this would introduce a topic that could in all probability lead to the death of one’s client. However, we strongly disagreed with taking such an absolute position about the issue of character because we do not have compelling evidence that demonstrates that it is best to avoid rather than dispute assumptions about the nature of a defendant’s character or background. Without a doubt, this is the very type of issue that is in need of future research by social scientists. In our view, Berman and Bibas (2008) are correct that traditional attitudes toward emotions are misguided in many matters involving the death penalty. Instead of ignoring the emotions surrounding bad character and bad reasons for crimes, we believe that practitioners need to find ways of embracing them whenever issues of character are an obvious component of the case. By “embracing them,” we mean that mitigation professionals have to contextualize a person’s character in ways that are likely to activate increased levels of sympathy towards a defendant. It also refers to strategies that will serve to deactivate evidence or conditions that are likely to trigger an intuitive-prosecutor mindset in death qualified members of a jury (refer to Chapter 8). Jurors who are opposed to the death penalty are not qualitifed to participate on a jury in a death penalty case. In order to embrace these emotions in an effective manner, mitigation professionals need further guidance from the research community. The role of the “severity effect” in the field of social judgment research is well documented, but the conditions that can attenuate the emotional reactions of subjects to a first degree murder and to variations in themes used to deactivate a prosecutor mindset in these types of cases (previously discussed in Chapter 8) is virtually nonexistent. In essence, there is a real need for social scientists to develop a research program that will target specific types of conditions and theoretical questions with potential implications for promoting evidence-based practices in the field of capital mitigation. There is some evidence for potential forms of mitigation described in this book, but the field is not clear about the conditions that can tip responses to many of these arguments in the wrong direction. Nonetheless, we know that people will develop sympathies for highly complex characters in novels and in movies who have engaged in very bad activities. The important challenge for the field remains that we lack compelling evidence about how to introduce these social themes of mitigation to juries, as well as how to translate extant knowledge from research on the intuitive-prosecutor mindset to the development of measures that lawyers can use in actual jury selection processes.

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Clearly, the field of mitigation practice is in its early stages of development, and as a consequence, it will need increased attention from social scientists if knowledge is going to advance in this highly specialized area of criminal law. One potential starting point would be to test many of the moral arguments described in this book that philosophers assume ought to reduce a person’s moral culpability. Besides studying these substantive moral concerns, there are numerous questions about process issues in capital cases that also need to be investigated by members of the research community. In summary, this book provides some initial directions for this inchoate field of socio-legal inquiry in capital sentencing. It introduces practitioners and social scientists to the legal concepts and issues that practitioners need to master in order to practice effectively in the field of capital mitigation. It also introduces frameworks from the social science literature that are useful for guiding social history investigations, themes for organizing mitigation narratives, and concepts for addressing research questions with implications for building knowledge in the field of capital sentencing.

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appendix

Court Descriptions of the Case of Robert Alton Harris

Court Summary of Guilt Phase

In May or June of 1978 defendant first asked his brother Daniel for help in a planned bank robbery. fn. 2 Defendant next raised the subject in July of 1978 while visiting Daniel in Visalia. On 2 July 1978, Daniel stole a .22 rifle and a .9 millimeter pistol from the home of Jim Corbin, a neighbor. While Daniel and defendant were in the house, apparently in Corbin’s absence, defendant stated they needed weapons for the bank robbery and asked whether there were any in the house. Daniel then showed defendant the guns and took them from the house. The brothers left Visalia for San Diego that evening. The next morning, 3 July 1978, they purchased ammunition, went to a nearby rural area and practiced firing the weapons by shooting at trees while running and rolling—a drill they considered appropriate in preparing for the bank robbery. The brothers then drove to the Mira Mesa area of [28 Cal. 3d 944] San Diego County and spent the night in a house defendant had been sharing with his girl friend.

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The following morning, 4 July 1978, defendant and his brother purchased more ammunition as well as knit caps, in which they burned eye holes, to serve as masks in the bank robbery. That afternoon they went to the Miramar Lake area, near Mira Mesa, for more shooting practice. They walked up a fire trail, fired a few rounds, but left when a vehicle approached. They next reconnoitered the area around their intended target—the San Diego Trust and Savings Bank on Mira Mesa Boulevard. The next morning, 5 July 1978, having decided to steal an automobile for use as a getaway car, the brothers spotted a green Ford in a grocery store parking lot directly across Mira Mesa Boulevard from the bank. John Mayeski, 15, and Michael Baker, 16, were in the car eating hamburgers. Assuring Daniel “nobody is going to get hurt,” defendant walked over to the Ford, pulled the pistol from his waistband, and got in the back seat. With Daniel following in defendant’s car, the Ford was then driven out Mira Mesa Boulevard toward Miramar Lake and the fire trail where the brothers had been the day before. At the foot of the fire trail defendant and Daniel parked the cars and forced the two boys to walk up the trail at gunpoint. Defendant was carrying the pistol and Daniel the rifle. Defendant told the boys their car was going to be used in a bank robbery but that no one would be hurt. Defendant asked the boys whether there was any rope in their car. The boys replied there was not but said they would walk to the top of the hill, wait until the brothers drove back to Mira Mesa, and then report the Ford as stolen, giving the police a misleading description of the thieves. Defendant voiced approval of this suggestion. The boys then began walking up the hill. Suddenly, Daniel heard a shot. Turning around, he saw John Mayeski fall to the ground. Defendant had shot the boy in the back with the pistol. Defendant fired another shot into the boy’s head, then ran after Michael Baker. Finding the Baker boy crouching and screaming in the brush, defendant shot him four times. Defendant then went back to the fallen Mayeski boy and fired a shot point-blank into his head. Finally, defendant picked up the rifle dropped by Daniel and shot John Mayeski yet again. The brothers then left the murder scene and drove back to the house defendant [28 Cal. 3d 945] shared in Mira Mesa. There defendant ate the remainder of the dead boys’ food and laughed at Daniel for not having the stomach to join him. While the brothers continued preparing for the bank robbery, defendant laughed and giggled about shooting the boys, saying he had blown Michael Baker’s arm off. Defendant also amused himself by imagining what it would be like to be a police officer and to report the boys’ deaths to their families.

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When Daniel noted there were fragments of flesh on defendant’s pistol, apparently from the point-blank shot fired into John Mayeski’s head, defendant laughed, commented he had really blown the boy’s brains out, and then flicked the bits of flesh into the street. Later the same day the brothers robbed the bank. fn. 3 They were quickly arrested for the bank robbery when a witness, who followed them from the bank to defendant’s house, called the police. The brothers were arrested at 1:05 p.m. on 5 July 1978. At 4:00 p.m., Daniel first informed officers of the murders; at 6:30 p.m., Daniel confessed in a taperecorded statement, placing the blame primarily on defendant. At 7:00 p.m., having listened to portions of Daniel’s statement, defendant himself confessed to Officer Fred Dreis. At midnight, the brothers were interviewed by Dr. Wait Griswold, a psychiatrist. On 7 July 1978, at 11:20 a.m., defendant repeated his confession in detail to Johnny Bolden, a criminal investigator for the San Diego County District Attorney’s office. Finally, at 1:00 p.m. on 7 July 1978—an hour before he was arraigned—defendant confessed to Officer Ronald Newman. fn. 4 When one of defendant’s sisters visited him in jail on 15 July 1978, he told her, “Now, I guess because I killed those two boys, they were only 16 years old, then robbed the bank and kidnapped them was because I really wanted to die.” Defendant’s last extrajudicial confession was made to a fellow inmate. Asked why he had killed the boys, defendant answered, “I couldn’t have no punks running around that could do that [identify him], so I wasted them.” [28 Cal. 3d 946] Testifying in his own behalf at the guilt phase, defendant admitted the bank robbery but denied kidnapping, robbing and murdering the two boys. He explained his pretrial confessions as attempts to protect his brother. [Quotation from People v. Harris, 28 Cal. 3d 935 (1981)].

Court Summary of Penalty Phase

In 1975 defendant pleaded guilty to voluntary manslaughter of James Wheeler. Wheeler and his wife lived with defendant’s brother Ken and his wife; defendant and his wife lived next door. At the scene, defendant admitted beating Wheeler to death but claimed he had done so to protect the victim’s wife when her husband threatened her with a knife. Later, just as in the present case, defendant repudiated his confession and sought to shift the blame

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to his brother, claiming Ken had killed Wheeler and that he had confessed to protect Ken. This is the story defendant told when testifying in the present proceeding. However, defendant’s former wife and his niece testified defendant, without provocation, beat Wheeler to death while mockingly claiming to teach his victim self defense. During this sadistic attack defendant also cut off Wheeler’s hair and threw matches at him after squirting him with lighter fluid. Defendant’s former wife admitted she lied to the grand jury investigating Wheeler’s death explaining defendant had threatened to kill her too if she did not support his story. Defendant continued to lead a life of violence while in jail awaiting trial on the present charges. Defendant was housed in a “tank” consisting of a dayroom and adjoining cells. A guard approaching the tank overheard a conversation between defendant and other inmates in which reference was made to a knife. When the guard left to advise his superior a search should be conducted, one of the inmates, realizing a search was likely, told defendant to hide the “shank.” fn. 5 Defendant went to his cell, removed from a box a piece of metal, which was approximately 10 inches long and sharpened on one edge. He then returned to the dayroom and concealed the shank underneath a table top where guards found it minutes later. [28 Cal. 3d 947] The next day defendant presided over a kangaroo court and found another inmate, Keith G., guilty of cowardice. Defendant told Keith he would have to submit to sodomy or lose his life. Keith was then taken into a cell, forced to lie face down on the bunk with his trousers pulled down and forcibly subjected to sodomy by three inmates, including defendant. Later in the day his assailants demanded Keith play strip poker with them. When Keith would not pick up his cards he was taken into the shower room and forced to orally copulate defendant and another inmate. Removed from the tank when he reported the assaults, Keith later encountered defendant in a holding area. Despite the presence of guards, defendant loudly and repeatedly threatened Keith’s life. Six days after the assaults upon Keith were reported, defendant’s cell was searched. In the toilet a large water-soaked wad of tissue was found. Wrapped in the tissue was a 17-inch wire with looped ends in which the short pencils available to inmates might be inserted as handles. The guard who found this garrote said, “Look what I found, Bobby.” Defendant, laughing, replied, “Aw, looks like you have me now.” Defendant’s testimony during the penalty phase indicated he had a dismal childhood. When defendant was approximately 11 years old, his father served

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two separate prison terms for having sexual relations with defendant’s sisters. The family then followed the harvest from state to state with defendant’s mother and her boyfriend. Defendant’s schooling ended in the seventh grade. Defendant’s mother forced him to leave the family when he was 14, saying he was not working hard enough. He soon stole a car and served four years in federal institutions for that crime, escape and a separate instance of attempted escape. He was subsequently imprisoned for the voluntary manslaughter of James Wheeler. Defendant was 26 years old at the time of trial. Defendant admitted his testimony at the guilt phase—that he had nothing to do with killing the boys—was a lie. Changing his story, defendant testified he had not planned to kill the boys, that his brother had fired first, and “the next thing I knew I was shooting them myself.” Defendant claimed he was “sorry” about the murders. In support of this claim, defendant called Deputy Sheriff Michael Mendoza who testified that when he inquired into defendant’s emotional state after he cut his wrist and reportedly attempted to stab himself with a pencil, [28 Cal. 3d 948] defendant appeared remorseful. However, defendant admitted on cross-examination he had told a jail visitor his attorney wanted him to express remorse and he was not going to do so. [Quoted from People v. Harris, 28 Cal. 3d 935 (1981)]

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Glossary

actus reus is the Latin term referring to the wrongful or guilty act—the objective element of a crime. aggravating circumstances are any circumstances surrounding the offense or the offender that would enhance the sentence or punishment. antisocial personality is a personality disorder that is characterized by an enduring pattern of behavior that disregards the rights and needs of others. attribution responsibility is the process of attributing a moral judgment to an offender’s moral character. In assessments of attribution responsibility, the focus is on identifying an appropriate reaction to an “agent qua an agent” for his or her harmful behavior. criminal responsibility is the legal issue involving assessments of the mental state of the offender at the time of the offense. It is also referred to as legal responsibility in some criminal contexts. diminished capacity is an assertion that the defendant has a reduced capacity for criminal responsibility. It also involves a defense in which the person lacks the capacity for the mental elements of a crime. diminished culpability occurs when the person’s degree of blame is reduced by personal or situational circumstances. diminished volition occurs when a person’s capacity for making a voluntary choice is reduced by personal or situational circumstances. dissocial personality is a disorder that is characterized by an enduring pattern of not adhering to recognized social values and moral/legal standards. dyssocial personality was considered a disorder of character in which the person engages in abnormal or maladjusted forms of behavior not because of personality attributes, but because of exposure to corrupted forms of socialization.

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Glossary of Terms

excuse is a legal defense in court of law that offers a basis for exemption of legal guilt. extenuating circumstances lessen the seriousness of the crime or the culpability of the offender. folk psychology relies on common sense and conventional wisdom to predict human behavior. folk theory is very similar to folk psychology (see Folk psychology). genogram is a diagram of a family that depicts the connections of a person to that person’s family history and how the person’s family system is connected with other communities and kin groups. guilt-phase investigator is a member of the capital defense team who is responsible for helping the defense attorneys develop the facts and legal issues related to the guilt/ innocence phase of a criminal trial. life chances is a technical term in sociology that involves the opportunities in a person’s social environment that can have an influence the qualitative aspects of a person’s life. life course is a concept and a theoretical perspective that examines changes in age-differentiated life patterns that are embedded in social institutions that are subject to the influence of historical changes. imperfect defense is when a traditional defense for a crime is not complete. For instance, a person acted on an unreasonable belief, rather than a reasonable belief of provocation. justification is a legal defense in which a defendant provides a legally adequate reason for why an offense was committed. kindling refers to any process that sensitizes the brain or other relevant systems to ignite very easily or at very low thresholds. latent knowledge structures are the attitudes, beliefs, and values that are stored in a person’s long-term memory. mens rea is the Latin term meaning a “guilty mind”—the mental element(s) of a crime. mental states refer to the different mental elements used in defining different crimes. There are crimes of intent and crimes of omission that involve different mental elements besides the physical aspects of a crime. The Model Penal Code differentiates between the mental states of purposely, knowingly, recklessly, or negligently engaging in different kinds of crime. mitigation involves any facts about the defendant’s character or background, or the circumstances of the particular offense, that may call for a less severe sentence or punishment; any reason or fact that serves to lessen a defendant’s deserved punishment. mitigation evidence is defined as any evidence with implications for judging any aspect of a defendant’s character, record, or crime that could support a reasonable argument for a sentence less than death. mitigation specialist is the member of the defense team with expertise in identifying mental health conditions and with expertise in developing a comprehensive biopsychosocial history of relevant mitigation evidence. The mitigation specialist coordinates the investigation of the defendant’s life history; identifies issues requiring evaluation by psychologists, psychiatrists, or other relevant experts; and assist attorneys in locating lay witnesses and in identifying relevant documentary materials for their review. moral culpability refers to the degree of one’s moral blameworthiness for committing an offense or crime against society. moral luck involves making judgments of praise or blame about factors that are outside of an individual’s personal control.

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normative competence refers to the capacity for both understanding and being able to conform oneself to the requirements of the law. partial excuse is a legal defense that does not provide relief from conviction or punishment, but does result in a lesser charge. Partial excuses should not be confused with mitigation excuses, which involve inadequate legal excuses. practical rationality involves the use of reason in acting in accordance with one’s duty as a member of society. provocation interpretational bias is an information-processing difficulty that occurs when people are biased in favor of perceiving neutral faces as angry and perceiving ambiguous provocation situations as intentionally hostile and harmful. proximal mitigation involves any facts or factors with some nexus to the defendants’ capacity for appreciating the wrongness of their behavior or for conforming their behavior to the requirements of the law. Proximal mitigation focuses on facts with a direct connection to the crime that can lessen the defendant’s culpability. psychopathic personality is a personality disorder that characterizes a person who is incapable of feeling remorse, guilt, for his or her actions. A cardinal feature of this disorder is the person’s inability to feel empathy for others. schemas are mental representations or clusters of knowledge about a specific social category or social stimuli that are stored in a person’s memory. scripted impulsivity is “an individual’s tendency to access and enact a cognitive script that has been both mentally and behaviorally rehearsed across repeated experiences” (Fontaine, 2008, p. 26). scripts are knowledge structures involving information about how people behave under varying circumstances. sentencing facts are any facts or factors that can aggravate or effect the severity of a criminal sentence. remote mitigation involves factors that are not directly related to the crime. transition refers to the process of changing from one state to another state. trajectory is a path, progression, or line of development that describes the sequence of events, decisions, or roles in a person’s life. value base impulsivity occurs when a person does not consider a behavioral option because it is inconsistent with the person’s values or perceptions of himself as a moral agent. zeigarnik effect refers to the principle that interrupting any activity becomes more strenuous as it nears completion.

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Index

abuse excuse (abuse defense), 60–61, 67, 98 accountability, social, 176 action. See also social action moral, 148–49 addictions, 126 “adequate cause,” defined, 111 age as mitigating factor, 29 aggravation, 19 challenging evidence of, 15–16 aggression evolving conceptions of, 117–18 hostile vs. instrumental forms of, 117–18 knowledge structure approach to, 118–21 Alicke, M. D., xviii American Bar Association (ABA), 6 ABA Standards for Criminal Justice:, 13 Supplemental Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, xvi, 37–39, 42–44, 47–49, 169 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty, 8–11, 13, 34 Anderson, E., 118–21 Andres v. United States, 23

215

anger, 110, 117, 118, 166 antisocial behavior, 137–38, 144, 167, 175 antisocial personality disorder, 130, 137, 138, 145. See also psychopathy Apprendi v. New Jersey, 31–32 Arenella, P., 65–67, 172 Aristotle, 139, 146 Arizona New Mexican Mafia, 171 Ashford, José B., 81, 86, 148 asocial personality disorder, 137 Atkins v. Virginia, 28, 29, 57–58 attitudes, 67–68 attribution frameworks, new developments in, 175–78 attribution issues in penalty-phase judgments, 161–65 attribution responsibility, 63 and causality and models of character, 63–67 defined, 63 attributions of conduct vs. moral character, 63–65 authority, obedience to, 162–64 automatic-controlled continuum, 120, 121 automatic-information processing, 120 automatic processes, 120

216

Index

automatic vs. controlled behaviors, 119–20 features of, 119 Bargh, J. A., 121 Baumeister, R. F., 111–13, 115, 122, 126–27, 147 Beccaria, Cesare, 19–21 behavior defined, 92 vs. social action, 92–93 behavioral components of psychological formulations, 82f benefit of clergy, 107 Bentham, Jeremy, 19 Berman, D. A., 188 Bibas, S., 188 bifurcated trial process, 24 Bilionis, L. D., 26 biological formulations, 81–82. See also brain dysfunction; neuroscience Blackstone, William, 175 blame attribution of, 175–77 stages in, xviii capital sentencing and, xviii–xxi Blasi, A., 148–50 brain dysfunction, 127–31, 133 Burke, P. J., 184–86 Bushman, B. J., 118–21 Camus, Albert, viii capital defense team, 33–34 collection and analysis of life history records, 45–47 composition of, 34 defense counsel, 35–36 investigator, 34–35 mitigation specialist, 36–41 roles of experts on defense team, 41–42 development of demonstrative evidence, 49–50 ongoing review of case information and consultation with legal counsel, 49 performance standards for mitigation function, 42–44 sequence of mitigation investigation, 44–45 witness interviews, 47–49 Carter, M. J., 183 Carver, C. S., 113

Castells, Manuel, 124 causal models of character, 64–65 chance medley, 107, 108, 111 character. See also moral character definitions, 140 influence on jurors, xxiv models of attribution responsibility, causality, and, 63–67 causal, 64–65 implicit-attribute, 143–46 moral agency, 65 character education, dimensions defining current approaches to, 146–47 character neurosis vs. symptom neurosis, 137 character theories of responsibility, 63–64 chronology, summarizing data in a, 50 client contact and interviews, 48–49 cognitive components of psychological formulations, 82f Coke, Edward, 107 Columbine High School massacre, 118 conflicting/competing moral obligations and standards, 69, 70, 113, 146 controlled vs. automatic behaviors, 119–20 features of, 119 “cooling off ” doctrine, 109 cooling-off period, 108–10, 117 Crampton v. Ohio, 23 Crick, N. R., 124, 132 criminal culpability. See culpability criminal history and culpability considerations, 141–46 criminal record, 67 Crocker, Phyllis L., 60 cruel and unusual punishment, 7. See also Eighth Amendment culpability, xix, 56, 57, 60 vs. criminal responsibility, xix, 56–57 diminished, 58–63 culpability assessments responsibility and, 52–53 and types of mitigation, xxi–xxiii culpability issues in capital sentencing, xviii–xxi in provocation law, 106–11 “cultural structure,” morality as, 183–84 Cunningham, M. D., 80

Index dangerous offenders, 139–40 death penalty, narrowing eligibility for, 27–30 decision-making. See judgment and decisionmaking defense counsel, 35–36 practice norms for, 8–12 Dershowitz, Alan M., 61 desires, first- vs. second-order, 150–51 determinism, 19, 92. See also free will deterrence, 22, 175 development as lifelong process, 91 developmental systems theories, 77 Diagnostic and Statistical Manual of Mental Disorders (DSM), 137–38 Dickens, Charles, 145 diminished capacities, 57–59, 67 defined, xix diminished rationality, 104, 115, 123, 133 diminished responsibility, 58–63, 66–67 diminished volition, 104, 115, 123, 166 discretion in capital sentencing legislation, 22–24 dissocial personality disorder, 137, 140 Dodge, K. A., 124–25, 132 Doris, J. M., 141 Duff, R. Antony, 138, 154–57 Durham, A. M., III, 143–44 Durkheim, Émile, 146, 147 Durkin, K. F., 168 dyssocial personality disorder, 137, 144 Ebert, Paul, 136 Eddings v. Oklahoma, 61 ego-depletion model of self-control, 126 Eighth Amendment, 25, 27–30. See also cruel and unusual punishment Einstein, Albert, 155–56 Elder, Glen Holl, Jr., 88, 94–96 emotions surrounding character and motivations, 188 entrapment, 163 environmental factors, 68–70. See also social history investigation excuses, 5 Exline, J. J., 147 expert testimony, xviii experts on defense team, roles of, 41–42 extenuating circumstances, 5, 77

217

Fagin syndrome, 145 fairness, personally mitigating factors and issues of, 67–70 family members as witnesses, 48 Federal Sentencing Commission, 142, 143 Federal Sentencing Guidelines, 142 feedback-loop model of self-regulation, 113–15, 127, 131 Finkel, N. J., 106, 115–16 first- vs. second-order desires, 150–51 Fontaine, Reid Griffith, 104, 105, 122–26, 173 forensic training programs, xvi France, penal code of, 20 Frankfurt, Harry, xxvi–xxvii, 150–52 Franklin v. Lynaugh, 5 free will, 19, 112, 121. See also determinism Froming, Karen, 158 Fromm, Erich, 84 “front-loading” the mitigation evidence, 58 Furman v. Georgia, 24 and the post-Furman landscape, 24–27 gang justifications for developing mitigation themes, 168–69 gang killings and potential directions for mitigation, 172–75 moral conflicts, gangs, and prison life, 164, 168–75 gangs, 15, 113, 164 genograms, 50 Gilligan, Carol, 156 Ginsburg, Ruth Bader, 32 Gounagias, State v., 110 Great Depression, 88 Gregg v. Georgia, 8, 24–25 guided discretion models, 24–25 guilt, investigation of, 9–10 guilt phase investigator, 34–35 habitual forms of behavior, 126 factors influencing the control of, 122–23 Hagedorn, J. M., 113 Haidt, J., 158, 177–78, 181 Haney, Craig, 12, 84, 85 Harding, Donald Eugene, xxvi, 84–85, 128–33, 136 Harris, Robert Alton, xxvii, 85, 136, 152, 154, 155, 157–58 challenges posed by, 152–54

218

Index

Hartman, H. L., 144–45 hate crimes, 31–32 Heatherton, T. F., 112, 122 Heiders, Fritz, 162 Hemings, Sally, 148 homicide, 135. See also specific topics Homicide Act 1957, 110 hostile aggression, 117–18 “hot” vs. “cold” crimes, 118 Hudson, Barbara, 133–34 Hunt, S., 89 Hurley, S. L., 64, 67, 68 identity, 185–86 defined, 185 identity meanings, 184–85 implicit-attribute models of character, 143–46 impulsivity, forms of, 125–26 individualization of punishment, xv, 21, 22 ineffective assistance of counsel, 27 inertia. See habitual forms of behavior information-processing steps, 123–24 insanity, 54, 59, 62. See also practical rationality; rationality moral, 138 instrumental aggression, 117–18 intelligence quotient (IQ), low, 28. See also mental retardation interviews with client, 48–49 with witnesses, 47–49 intuitive-defender mindset, 180 intuitive prosecutor mindset, 176–81, 188 intuitive-scientist mindset, 162 investigation as cornerstone of death penalty representation, 12–14 of guilt, 9–10 of mitigation, 10–12 investigator, 34–35 irresistible impulses, 112, 122 Jareborg, N., 166–67 Jefferson, Thomas, 148 “Jo Jo,” challenges posed by, 152–54 judgment and decision-making (JDM) metaphors governing, 176–78 social-functionalist approach to, 177 jurors, xvii–xviii, 57. See also specific topics

jury instructions, 5, 57 jury sentencing discretion, 23–25 just-desert approaches to punishment. See retribution justification(s), 5. See also gang justifications for developing mitigation themes social-psychological theories of, 165–68 juveniles and death eligibility, 29–30 Kant, Immanuel, 146, 147 kindling, 114 Klein, M., 151 knowledge structure approach to aggression, 118–21 Kohlberg, Lawrence, 146–48, 156 Lacey, Nicola, 65 Landon, J., 66 Lapsley, D. K., 139, 146, 149–51, 172 LeCroy, C. W., 81, 86, 148 Lempert, R., 92–93 life course, defined, 88 life-course perspective, 77 concepts of, 90–91 early contributions to, 85–90 issues of context and, 83–91 principles, 90–96 questions asked by psychologists studying, 87 questions asked by sociologists studying, 87 life-course trajectory. See trajectories life events, timing of, 95–96 life history, 68. See also social history investigation linked lives, principle of, 96 Litton, P., 55, 66–68 Lockett doctrine, 25 Lockett v. Ohio, 25 and its progeny, 25–27 luck and responsibility, 64 Lyman, S. M., 168 Lynd, Robert, 167 MacIntyre, Alasdair, 68, 97–98, 145–46 Maddy, R v., 108 Mafia, 171–72 Maher, Robin, 13 “malice aforethought” and levels of malice, 22–23

Index mandatory sentences, 21–22, 184 manslaughter, 108. See also chance medley evolution of the criteria for establishing cases of, 108–11 voluntary, 116–17 Maryland, 11 Matza, D., 164–65 McGautha v. California, 23–24 McMillan v. Pennsylvania, 30–31 McVeigh, Timothy, 7 mens rea (“guilty mind”), 54–56, 104–6 mental retardation, 27–29, 57–58 mental-state approaches to culpability, 56 mental-state issues, xvii–xviii mercy, 23, 24 Milgram, Stanley, 162–63 Milgram experiment, 162–63 Miller, Jill, 35 Mills, C. Wright, 88 “mitigating circumstances,” 4 mitigating evidence, 7, 10–13, 25–26, 28, 43 mitigation, 61–62 definitions and nature of, 4–6, 43 duty to investigate, 10–12 of guilt vs. of punishment, 54–56 vs. mercy, 23 significance of special offense circumstances and, 19–20 mitigation practice, current limits of, 6–8 practice norms for defense counsel in capital cases, 8–12 mitigation specialist, 36–41 definition and scope of the term, 36, 37 duties, 36 mitigation themes, 14–15 Model Penal Code, 56, 110–11, 116 Moen, Phyllis, 87–88 Moffit, T. E., 86 moral agency, assessing, 65–70 moral agency models of character, 65 “moral calculus,” 26 moral character. See also character crime and, 67, 137 assumptions about character in criminal sentencing, 138–41 moral overtones associated with personality classifications, 138 vs. moral responsibility, 21, 22 moral commitments, 149

219

moral community, relationships between the self and the, 154–56 moral culpability. See culpability moral development and character formation, theories of, 146–50 moral evaluation vs. predictions of behavior, 162 “moral luck,” 15 moral obligations and standards, conflicting/ competing, 69, 70, 113, 146 moral responsibility. See also responsibility and the ability to do otherwise, 151–52 vs. moral character, 21, 22 regression approaches to, 151 moral self/identity theory, 148–50 Harry Frankfurt’s influence on, 150–52 morality as “cultural structure,” 183–84 Morse, Stephen, 59 Moskowitz, G. B., 120 motivational vs. moral conflicts, 162, 167 motivations, 160–61 motives, 56 influence on jurors, xxiv Muhammad, John Allen, 136 murder first vs. second degree, 116 scale representing degrees of, 22 Narvaez, D., 149, 172 neoclassical principles of punishment in light of history, 19–22 neuroscience, 127. See also biological formulations; brain dysfunction Nichol, Terry, 7 Nichols, D. P., 179, 181 normative competence, 54 Norrie, Alan, xix–xx, 154–55 obedience to authority, 162–64 objective approaches to provocation, 108–11 objective attitude toward the defendant., 157–58 objective components of crimes, focusing on, 20 objective criteria in determining criminal liability, use of, 106–7 objective reactions, 153 objective vs. subjective approaches to crime and punishment, 107

220

Index

objective vs. subjective rules of provocation, 110–11 O’Connor, Sandra Day, xx–xxi, xxv, 5–6, 11, 62–63 Oklahoma City bombing, 7 operate phase (feedback-loop model of selfregulation), 131 organic brain syndrome, 128–29 Parrott, W. G., 106, 115–16 Parsons, Talcott, 93 partial excuses, 57, 60 partial responsibility, 59. See also diminished responsibility “passions,” 111 definition and scope of the term, 111 pattern jury instructions, 5 Patterson v. New York, 30 penalty-phase judgments, 53, 59–60 attribution issues in, 161–65 Penry v. Lynaugh, xx, 4, 25, 27–28, 62–63 personality disorders, 137–38, 140–41, 145 Pillsbury, S. H., 56, 62, 64 planned vs. impulsive acts, 118 post- vs. preconscious automaticity, 120 Power, C., 149–50 practical rationality, 55, 153 capacity for, 54–55, 59, 105, 108, 110, 111, 123–24, 153 provocation interpretational bias and, 123–24 pre- vs. postconscious automaticity, 120 preconscious perceptual categorization, 119 premeditated vs. impulsive homicides, 116–17 Prichard, J. C., 138 prison life, gangs, and moral conflicts, 164, 168–75 prisonization, 169 proportionality, principle of, 109 prosecutor, intuitive. See intuitive prosecutor mindset provocation, 105. See also manslaughter definitions, 110–11 provocation interpretational biases (PIBs), 123–24 proximal culpability, 53 proximal mitigation, xxi–xxii psychodynamic components of psychological formulations, 82f

psychological contributions to life-course perspective, 85–87 psychological formulations, 81, 82 psychopathy, 137–38, 140, 145, 157. See also antisocial personality disorder racial animus, 31–32 Rappaport, A. J., 142–43 rational choice theory, 66, 178 rational self-control, 66–67 rationality, and attributions of conduct, 65–66 reactive attitudes, defined, 153 reasonable doubt, 30–32 “reasonable person” standard/doctrine, xvii, 106, 109 regression requirement of responsibility, 151 remote forms of mitigation evidence, xxii repeat offender, defined, 140 response evaluation decision (RED) framework, 125 responsibility. See also moral responsibility; status responsibility criminal responsibility vs. moral culpability, xix, 56–57 diminished, 58–63, 66, 67 responsibility and culpability assessments, 52–53 responsibility and culpability issues conflating, 56–58 confusion about, 60–63 responsibility judgments, 149 retribution, 21, 22, 141–42, 175 revenge, 110 Ring v. Arizona, 30, 32 Roberts, Julian, 143 role identities, 185–86 Rompilla v. Beard, 11–12, 44 Rossi, Pellegrino, 20–21 Sanders, J., 92–93 Sandusky, Jerry, 169 sane deep-self view, 153, 186 sanity, 153. See also insanity; practical rationality; rationality Scheier, M. F., 113 schemas, 119–21

Index Schlenker, B. R., 173–74 Schoeman, F., 161–64, 167 script selection, deficits in, 125–26 scripted impulsivity, 125–26 defined, 126 scripts, 119–21 defined, 120 seizure disorders, 128–29 self-control conceptions of, 117–18, 126–27 as limited resource, 126 self-control and self-regulation, theories of, 111–13 under-regulation and misregulation failures, 111–16, 131 self-control dichotomies, controversies surrounding, 116–18 self-monitoring, 113–14 self-regulationn. See also self-control and self-regulation defined, 111–12 Sendor, Benjamin, 64–65 sentencing fixed, presumptive, and flat sentences, 21–22 individualized, xv, 21, 22 sentencing disparity, 19–22 sentencing factors, 30 and penalty decisions, 53 legal challenges to, 30–32 sentencing processes, capital vs. ordinary, xv severity effect, 188 sexual assault victim killing perpetrator, 110 Shaver, K. G., xviii Shils, E., 93 Singer, R. G., 106–10 Sixth Amendment, 33 and the duty to investigate guilt, 9–10 skilled behavioral enactments, 119 Slobogin, C., xviii social action vs. behavior, 92–93 defined, 92 Max Weber’s theory of, 92–93 Talcott Parson’s theory of, 93 social formulations, 81–83 social functioning, 82–83 defined, 83 social history, 68–70

221

social history investigation, xxii–xxiii, 44, 45, 77. See also life-course perspective data gathering process, 78–79 fundamental aim, 125 hypothesis-testing phase of investigation process, 81–83 components of psychological theoretical formulations, 82, 82f principles, 79–83 trajectories and storytelling processes, 97–100 social information processing (SIP) framework, 104–6 steps in, 123–25 social intuitionist approaches to judgment and decision-making, 176–78 social science, role in mitigation practice, xvii–xviii sociocultural theories of character formation, emerging, 156–58 sociological contributions to life-course perspective, 87–90 sociopaths. See antisocial personality disorder; psychopathy Sommers, Christina, 102 Sommers, Fred, 102 standards, 113 defined, 113 Stanford v. Kentucky, 29 status responsibility, 59, 60, 63 defined, 54 Stephen, Leslie, 18 Stephen, S. F., 116 Stets, J. E., 183–86 Stevens, John Paul, 27, 31 storytelling processes and trajectories, 97–100 Strawson, P. F., 157 strengths-based perspective on self-control, 125–26 Strickland v. Washington, 10 subjective approaches, 107 Supreme Court. See specific cases Sykes, G., 164–65 Tadros, V., 54, 63, 150, 152 Tappan, M. B., 156 Tarde, Gabriel, 21 Tennard v. Dretke, 28 Tetlock, Philip E., xxvii, 176–82 Thomas, W. I., 88

222

Index

Thompson v. Oklahoma, 29 Tice, D. M., 112–13 Tilly, C., 175 trajectories, 88–89, 97. See also life-course perspective storytelling processes and, 97–100 triangle model of responsibility, 173–74 “trivial provocations,” 109 uniformity in sentencing, 21–22 utilitarian approaches to punishment, 141 value-based impulsivity, 126 Vincent, B. M., xxii, 143 virtues and virtue ethics, 146–48 “virtuous” forms of culpability, xxii volition, diminished, 104, 115, 123, 166 volitions, second-order, 150–51 voluntarism, 93 voluntary choices, strategies for addressing threats to, 126

voluntary manslaughter, 116–17 von Hirsh, Andrew, 166–67 Vuosos, G., 60 Walton v. Arizona, 31 Watson, Gary, xxvi–xxvii, 152–54 Watts v. Bryes, 108 Weber, Max, 92–93 Whitman, J. Q., 141–42 Wiggins v. Smith, 8, 10–13, 36–37, 42 Wilkins v. Missouri, 29 Williams v. Taylor, 12, 26–27 Winship, In re, 30 Winston v. United States, 23 witness interviews, 47–49 witnesses, mitigation identification of potential, 48–49 Wolf, Susan, xxvi–xxvii, 151–54 Woodson v. North Carolina, 25, 184 Znaniecki, Florian, 88