Capital Litigation Forensic Psychological Evaluations

  • Death Penalty Mitigation
  • Competency to Waive Mitigation
  • Competency to Waive Appeals
  • Competency to be Executed
  • Atkins Mental Retardation Evaluations
  • Violence Risk Assessment at Capital Sentencing
Death Penalty Mitigation

The United States Supreme Court has held that a capital defendant is entitled to mitigation at capital sentencing as part of an individualized sentencing process pursuant to the Eighth and Fourteenth Amendments. The Court held in Lockett vs. Ohio that “the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” In Woodson vs. North Carolina, the Court held that a state’s death penalty statute “that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the frailties of humankind. The Court expanded these previous holdings in Eddings v. Oklahoma and instructed the sentencer to consider any mitigating factors including a defendant’s youth, lack of maturity, difficult family history including sever abuse, and emotional disturbance.

The United States Supreme Court’s holdings in Strickland vs. Washington and Wiggins vs. Smith stress the importance of defense counsels’ pursuit of mitigating evidence in order to secure effective counsel in capital proceedings.

Mitigation at capital sentencing can serve the following objectives:

  1. Explains mental illness and neurological deficits that were a nexus with the homicide but may have not been enough to constitute a defense at trial, i.e., insanity.
  2. Explains substance abuse/dependence that was a nexus with the homicide. A defendant’s substance abuse/dependence diagnosis may represent a bio-psycho-social addiction process. Further, his substance intoxication diagnosis at the time of the homicide may represent a volitional impairment of his behavior at the time of the homicide.
  3. Provides evidence of extenuating circumstances surrounding the offense.
  4. Portrays any positive/redeeming qualities the defendant possesses.
  5. Explains the defendant’s homicidal acts and prior violent/criminal behavior in a humanly understandable light given his past history, unique characteristics affecting his development, and exposure to heightened risk factors and deficits in protective/mediating factors.
  6. Reveals the defendant as a human being, humanizes the defendant and separates his character and background from his crime.
  7. Shows that the defendant’s life in prison would be productive and not threatening or violent to others. Reveals that he has made a good adjustment to incarceration pursuant to Skipper vs. South Carolina.
  8. Rebuts prosecutor’s evidence of aggravating circumstances.
  9. Negates the juror’s perception that the defendant presents as a future danger to society.
  10. Provides information to the jury about the impact of the defendant’s execution on his family and friends.