Mitigating factor

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In United States criminal law, a mitigating factor is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.[1]

Death penalty in the United States[edit]

In the United States, the issue of mitigating factors is most important in death penalty cases. In a series of decisions since 1972, the United States Supreme Court has attempted to make the sentence of death in the United States less arbitrary by emphasizing that the judge or jury must be given the opportunity to consider all mitigating evidence before determining the sentence. Thus the Court has stressed that because of the constitutional requirement of the fundamental respect for human dignity set out by the Eighth Amendment to the United States Constitution, information must be provided on the character and previous history of the defendant, as well as the circumstances surrounding the particular offense.[2]

The Supreme Court in Penry v. Lynaugh, and subsequently the Fifth Circuit Court of Appeals in Bigby v. Dretke, remanded cases in which the jury instructions in death penalty cases did not ask the jury to consider as mitigating factors the defendant's mental health, saying that the jury be instructed to consider mitigating factors when answering unrelated questions.[3] The Supreme Court's rulings have broadened the definition of mitigating evidence in the United States and systematically removed the procedural barriers to jury consideration and weight of that evidence.

The effect of these decisions is to broaden the definition of mitigating factors related to mental illness within the U.S. justice system, and to be more consistent with standard psychiatric and psychological findings that correlate specific behaviors to identifiable mental disorders. As a result of these decisions, even in the absence of a direct connection between the illness and the illegal action (as is required in the guilt phase of the insanity defense), the court acknowledges that the effects of a severe mental illness have pervasive effect on a person's behavior and can therefore be a relevant consideration in death penalty considerations.[3] If all relevant mitigating factors are not considered in a death penalty case, the punishment can be considered "cruel and unusual", the Supreme Court ruled in Tennard v. Dretke, a case in which the prosecution sought to exclude evidence of a low IQ in the penalty phase of the trial.[4] There is also an ongoing tendency of the Supreme Court to seek to include evidence of a defendant's potential for rehabilitation and a law-abiding future.[5]

Contrary use of mental illness as aggravating factor[edit]

However, a contrary opinion was rendered in People v. Smith where the Supreme Court of California upheld the prosecution's use of evidence of the defendant's mental illness presented by a psychologist, Dr. Chris Hatcher, who presented "profile evidence" as an aggravating factor in the sentencing phase of a capital crime (in this case the murder of a child) after the defendant pleaded guilty. This opinion was rendered, even though California has a clear statutory bar to this application. The defendant had argued that this use of psychological evidence violated a California statute prohibiting the use of serious mental illness as an aggravating factor. However, the court ruled that the psychologist's diagnosis, "sadistic pedophilia", obtained by profiling and not through any contact with the defendant, assisted the jury in understanding the motivation and circumstances of the crime and therefore aided in the proper sentencing of the defendant.[6]

In addition to sexual disorders, psychopathy is sometimes used directly and indirectly (to negate expressions of remorse) as aggravation, including in capital cases (this is not to say that it is not sometimes regarded contrarily as mitigation). It remains controversial whether a psychiatric test should be such a determinant.

Limits on mitigating factors in the United States[edit]

The Supreme Court held in Lockett v. Ohio that a defendant facing the death penalty is entitled to present any aspect of character or record, and any circumstance of the offense that might serve as a basis for a sentence less than death. The court may limit evidence not pertaining to these issues as "irrelevant". Although it has been argued that the defendant should be able to offer evidence questioning the morality of the death penalty or descriptions of the execution process, no court has allowed such testimony.[7]

Clinical participation[edit]

In the U.S., most mitigating factors are presented in way that are best described by clinical evaluations of the defendant and the circumstances, thus involving psychological or psychiatric analysis in the presentation to the court. Approximately one half of U.S. states allow evidence that the defendant was under extreme mental or emotional distress as a mitigating factor, if it is accompanied by an evaluation that the defendant's ability to appreciate the criminal aspect of his offense (mens rea), or his ability to control his behavior to meet the requirements of the law, was impaired.[2]

There is empirical evidence that expert testimony on future dangerousness has less effect on jury decisions than does expert testimony on the defendant's mental functioning. However, there is no evidence so far that expert testimony does influence the jury on sentencing outcomes in death penalty cases.[8]

See also[edit]


  1. ^ "Mitigating Factors, Mitigation". Lectric Law Library. Retrieved 2007-10-12. 
  2. ^ a b Melton, Gary (1997). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (2nd ed.). New York: The Guilford Press. pp. 265–266. ISBN 1-57230-236-4. 
  3. ^ a b "Mitigating Factors in the Death Penalty Jury Instructions Must Directly Address Mitigating Factors in Death Penalty Cases". Journal of the American Academy of Psychiatry and the Law. Retrieved 2007-10-12. 
  4. ^ "Death Penalty Mitigation - A State Court Cannot Bar the Consideration of Mitigating Evidence if the Sentencer Could Reasonably Find That Such Evidence Warrants a Sentence Less Than Death". Journal of American Academy of Psychiatry and the Law. 2005. Retrieved 2007-10-20. 
  5. ^ "Death Penalty Mitigation - Future Likelihood of Making a Positive Contribution to Society (Rehabilitation) Considered Mitigating Evidence in Capital Sentencing". Journal of the American Academy of Psychiatry and the Law. 2007. Retrieved 2007-10-20. 
  6. ^ "The People v. Gregory Scott Smith" (PDF). March 10, 2005. Retrieved August 26, 2016. 
  7. ^ Bonnie, Richard J. (1997). Criminal Law. Westbury, N.Y.: The Foundation Press. pp. 725–726. ISBN 1-56662-448-7. 
  8. ^ "Commentary: Expert Testimony as a Potential Asset in Defense of Capital Sentencing Cases". Journal of the American Academy of Psychiatry and the Law. 2005. Retrieved 2007-10-17. 

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