Failure to include a "mitigation specialist" in a death penalty case is arguably per se ineffective assistance of counsel, violating the defendant’s rights under both the Sixth and Eighth Constitution according to the United States Supreme Court. See Strickland v. Washington, 466 U.S. 668 (1984); Ake v. Oklahoma, 470 U.S. 68 (1985); Wiggins v. Smith, 539 U.S. 510 (2003); and Rompilla v. Beard, 125 S. Ct. 2456 (2005).
Furthermore, the American Bar Association [ABA] Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. Ed. Feb. 2003), is of the opinion that a mitigation specialist (if not more than one) is a mandatory part of the defense in any capital case. See, ABA Guideline 10.4 (C)(2)(a). In fact, the ABA Guidelines require every criminal defense team facing a capital punishment sentence have at the minimum two attorneys, a private investigator, and a mitigation specialist. See ABA Guideline 1.1, 4.1, and Commentary.
Therefore, part of the expense of today’s indigent defense in a death penalty case mandates the expenditure of hiring a competent and capable mitigation specialist. It’s the law – a mandatory component in capital defense. However, there are many that are unaware of this career path, and the level of expertise, intelligence, and savvy that is required for the job.
The Defense Professional: Mitigation Specialist in Capital Punishment Cases
Today, the National Legal Aid and Defender Association (NLADA) has a section devoted to the profession of mitigation specialist, the National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS). In doing so, NLADA has provided nationally accepted criteria to be met for those professionals seeking to work within this specialized area. NLADA also maintains a national database of recognized mitigation specialists available for death penalty trials across the country.
Working together with the rest of the defense team, the mitigation specialist works to find and fully understand the factual circumstances of the defendant’s life that allow the mitigation factors (“mitigators”) under state or federal law to apply in the case. In doing so, the importance of the mitigation specialist cannot be underestimated.
Who are the Mitigation Specialists?
Mitigation specialists usually have advanced education in the form of graduate degrees in a form of social work or psychology as well as a background in criminal justice, particularly capital defense matters. Within their personal characteristics and talents are an ability to organize and an eye for detail. Mitigation specialists have the ability to gather and analyze voluminous amounts of psychological, psychiatric, and other mental health documentation and records, as well as police records, school records, and family histories.
They are also expert at dealing with people in a non-confrontational manner. Mitigation specialists have an almost uncanny level of social skills, as they must discuss oftentimes extremely emotional and sensitive issues with any number of individuals. They interview and discuss the defendant with his family, friends, former employers, teachers, physicians, counselors, and psychiatrists. Their ability to work with people in difficult situations and in discussing often painful or embarrassing situations requires a particular finesse.
Invaluable Part of the Death Penalty Defense Team
The reality of today’s defense of someone facing the death penalty isn’t just the need for competent legal counsel and adequate defense funding. It’s the need for a competent, dedicated mitigation specialist to join him (or her) in the fight to save their life.
For more on the Mitigation Specialist and the formidable job they undertake, or if you are interested in pursuing this as your chosen career path, please read my article “What is a Mitigation Specialist in a Death Penalty case?”