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June 8, 2014

"The Failure of Mitigation?"

The title of this post is this notable new paper by Robert J. Smith, Sophie Cull and Zoe Robinson now available via SSRN. Here is the abstract:

A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders.  For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma?  The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime.

This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America.  Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders.  Though only a first step, our findings suggest the failure of the Supreme Court’s mitigation project to ensure the only offenders subjected to a death sentence are those with “a consciousness materially more depraved” than that of the typical murderer.  Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival — and perhaps outpace — those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility. 

June 8, 2014 at 01:45 PM | Permalink


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Assume the most sincere and honest motives, mitigation factors apply only if one is a retributionist. Assume the lawyer on the Suprem Court is not a cult hierarchy member seeking to generate lawyer make work jobs. Assume the lawyer are not pure evil, seeking to promote pure evil. Assume law school has not erased their high school knowledge and made them dumbasses. Assume, they do not hate America and do not seek to destroy our nation.

Here are some problems.

The mitigating factor is very remote from the murder, compared to excuses and justifications. Thus the chain of causality (assume it is not fictitious, as we know it is), is missing many links between the events of mitigation and the murder.

All mitigating factors are associated with lower rates of criminality. So the insane have lower rates of crimes, most are nuisance crimes, such as acting up on a bus. Crime rates peak well into adulthood (again assume age 18 is real, not a lawyer fiction). Mentally retarded people also commit fewer crimes, and again most are nuisances or based on a lack of understanding of the rules. So the murderers with these features are more deviant from their class than people in other classes.

The mitigation undermines the evolving idea of equal treatment. If members of these mitigating classes want to be privileged more, they must a accept more responsibility, not less. Advocacy groups do not understand that basic equation.

A single diagnosis or IQ number may miss the tremendous skills and abilities that erase all mitigation. Thus Atkins conducted a drug business from age 9, functioning in a tough environment, much better than the Justices did at that age. How many lawyer could lure an adversary into a car and dispatch him, in a remote location? So was he mentally retarded? Yes, but only for the school attainment the IQ test is supposed to predict (not culpability). Did the authors look for these in their research, a biased and narrow search for evidence solely to support a prior viewpoint.

Posted by: Supremacy Claus | Jun 8, 2014 3:24:34 PM

The IQ and criteria for psychiatric diagnosis have some validation. But they were validated to measure school performance, and to generate treatment decisions. They were not validated to measure culpability. Can culpability be quantified and measured? Could not find out how. That means, it is based on the subjective opinion of a judge or jury. So use of these measurements not only violates Daubert, which applies to the criminal trial, but also the Equal Protection Clause and Fifth Amendment Due Process, especially if a race factor can be found in the applications. .

Posted by: Supremacy Claus | Jun 8, 2014 6:48:56 PM

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