LAW REVIEWS— Who Lives and Who Dies Depends Heavily on a Thorough Investigation and Presentation of Mitigating Evidence in Death Penalty Cases

In a forth­com­ing update to their ground­break­ing 2018 research on the impor­tance of mit­i­ga­tion in death penal­ty cas­es, researchers Russell Stetler, Maria McLaughlin, and Dana Cook (pic­tured) have great­ly expand­ed the num­ber of cap­i­tal cas­es reviewed and drawn the con­clu­sion that ​“the effec­tive inves­ti­ga­tion and pre­sen­ta­tion of mit­i­gat­ing evi­dence can fore­stall a death sen­tence no mat­ter how death-wor­thy the crime facts may appear at first glance.” Their study — titled ​“Mitigation Works” — focused on high­ly aggra­vat­ed cap­i­tal cas­es that result­ed in life sen­tences, rather than death. The update expand­ed the num­ber of poten­tial death-penal­ty cas­es reviewed to about 600, while their pri­or 2018 study exam­ined 200 such cases.

“Highly aggra­vat­ed” cap­i­tal cas­es includ­ed those where at least one vic­tim was a child, where at least one vic­tim was a law enforce­ment offi­cer, or where there were mul­ti­ple vic­tims. They also iden­ti­fied three per­sis­tent bar­ri­ers to effec­tive mit­i­ga­tion inves­ti­ga­tion and pre­sen­ta­tion: ​“sys­temic racism, inad­e­quate indi­gent defense fund­ing,” and com­pli­cat­ed pro­ce­dur­al obsta­cles to cor­rect­ing past errors.

The arti­cle dis­cuss­es sev­er­al infa­mous cas­es — such as cas­es involv­ing those accused with the September 11 attack and the Oklahoma City bomb­ing — that were charged as cap­i­tal crimes but result­ed in life sen­tences. ​“To some observers, these cas­es seemed to be sim­ply excep­tions, the work of elite super-lawyers who pro­vid­ed their clients with a ​‘Cadillac defense.’ This Article shows, on the con­trary, that ordi­nary pub­lic defend­ers and court-appoint­ed lawyers have rou­tine­ly achieved the same results in cas­es that did not make nation­al head­lines. These cas­es demon­strate the sim­ple propo­si­tion that, in cap­i­tal cas­es, mitigation works.”

The authors point to the dwin­dling pub­lic sup­port for the death penal­ty and the falling num­ber of death sen­tences as fur­ther sup­port for their claim that when juries are pre­sent­ed prop­er­ly-researched mit­i­gat­ing evi­dence, they are more like­ly to vote for life, no mat­ter how aggra­vat­ed the crime was. They char­ac­ter­ize mit­i­gat­ing evi­dence as ​“the engine of the death penalty’s self-destruc­tion” because it demon­strates ​“the stun­ning jux­ta­po­si­tion of over 600 cas­es in the most aggra­vat­ed cat­e­gories with … deci­sions nonethe­less to reject death sentences.”