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.”

Sources

Russell Stetler, Maria McLaughlin, Dana Cook, Mitigation Works: Empirical Evidence of Highly Aggravated Cases Where the Death Penalty Was Rejected at Sentencing, 51 Hofstra L. Rev. 89 (2022).