Mitigating Circumstances in Death Penalty Decisions: Using Evidence-Based Research to Inform Social Work Practice in Capital Trials

Social workers are increasingly assuming the role of mitigation specialist and becoming central figures in multidisciplinary capital defense teams (Guin, Noble, & Merrill, 2003; Schroeder, 2003; Stetler, 1999). Those who advocate for social workers' entry into this emerging field argue that the profession is rooted in and distinguished by traditions of advocating for the powerless and working for social justice (Roberts & Brownell, 1999). Advanced clinical skills (Alfonso & Baur, 1986; Andrews, 1991; McCoy, 1999) as well as training in systems and ecological theoretical approaches (Schroeder) appear to be very useful in uncovering and interpreting the biopsychosocial realities of individuals charged with capital offenses. In fact, the gold standard for mitigation practice is reliance on focused investigation and presentation of evidence about a defendant's life and character that is sufficient to compel jurors to consider a complexity of personal, social, and ecological issues in deciding attribution of responsibility that mitigate defendants' legal accountability in capital offenses. This article presents a conceptual framework of problems that surround mitigation practice and argues that better practices can be crafted from a broader systemic approach that is grounded in empirical evidence and practice and goes beyond current parameters of mitigation practice. EMERGENCE OF CONTEMPORARY MITIGATION PRACTICE STANDARDS In the incidence of capital cases, the U. S. Supreme Court has recognized what research has long shown: Jurors often make sentencing decisions prematurely, and they often base their decisions on their personal reactions to the defendant, their confusion about the rules of law, and their lack of understanding regarding their own role and responsibilities (Bowers, Sandys, & Steiner, 1998; Sandys, 1995). In an effort to safeguard against jurors' "unguided emotional response[s]" when determining punishment for capital defendants, the Court set forth a legal standard that requires defense teams in capital cases to conduct thorough investigations into the defendants' backgrounds. If the defendant is found guilty, the information gleaned from that investigation must then be presented as mitigating evidence during the penalty phase of the trial (Furman v. Georgia, 1972). The Court's monumental decision has led attorneys to seek the aid of social workers to conduct extensive social history investigations on clients who are defendants in capital cases. As noted by Schroeder (2003): The capital mitigation process comes to life when a social worker, using a life history model of investigation, assumes the role of mitigation specialist, who, by capitalizing on social work theory and research, practice knowledge and skills yields vital information that, through objective presentation of fact, guides sentencing decisions. (p. 424) The life history model relies on traditional practice methods including case history development, multidimensional assessment, record review, mediation, and multidisciplinary teamwork. This extensive case investigation yields rich historical data that are then considered in light of factors empirically linked with criminal behavior. This method provides the legal team with a consistent defense theme that is infused throughout both the evidence and penalty phases of the trial. A mitigation outcome is considered ineffective when the jurors fail to comply with the rules and the roles that are imposed on them as jurors, for example, in making premature decisions. CHALLENGING TRADITIONS The established mitigation strategy that relies on social histories and life-stories survives and thrives as a legal mandate and preferred approach in capital cases despite of a lack of empirical research that demonstrates it is an effective strategy. In fact, available empirical legal research suggests the contrary: Jurors often disregard or misunderstand mitigating circumstances when making sentencing decisions (Diamond 8,: Levi, 1996; Eisenberg, Garvey, & Wells, 1996, 1998; Garvey, Johnson, & Marcus, 2000; Luginbuhl & Howe, 1995; McDougall v. …