Mental Illness & Criminal Law: Mitigation

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Mitigation is the single biggest way mental illness impacts court cases.  Mitigation is the act of reducing the severity, seriousness or painfulness of something.  Mental health and mental illness often tell the story of what is really going on in any given situation.  It can show the judge, jury, prosecutor and often the victim the reasons for defendant’s actions.

To recap, this week I’ve covered the major ways mental illness affects criminal cases and what the courts are doing about it:


Texas law and courts have made strides on dealing with people suffering from a difficult mental or emotional disorder.  But as discussed previously, it is very hard to establish the insanity defense in Texas.  To be Not Guilty by Reason of Insanity, a person can have zero appreciation between the difference between right and wrong.

So what about the scores of cases where someone’s mind and judgement are over-powered by anxiety, racing thoughts, or in some instances delusions to the point they act horribly out of character yet they had an inkling what they were doing was wrong?  These are the vast majority of cases and these are the cases where the mental health issues constitute mitigation.

How Do You Establish Someone’s Mental Health Was to Blame?

It often speaks for itself.  Forensic psychologists or psychiatrists can often do evaluations and put a formal diagnosis to help explain the symptoms the person was experiencing.  The mental health professionals can also discuss the appropriate future treatment and progress of the person and show the path forward.

Professionals and experts also helps because many prosecutors, judges, jurors and even victims of the crime can be cynics who accuse someone of malingering or faking mental illness.  The forensic psychologists and/or psychiatrists help debunk this. In reality people malinger less than 5% of the time and even those who do malinger do so because of of different disorders than the one they fake.

The Path Forward

Everyone needs to see the path forward for the accused when it is the mental disorder largely to blame for a criminal situation.  The path may include inpatient or outpatient treatment, medication, and continued supervision.

Often the path forward may require changes to an existing plan which hasn’t worked – or to adjust the aggressiveness of a plan.  Frequently it includes dealing with an addiction which has developed when someone has self-medicated because of their disorder.

Going forward and showing judges, juries, prosecutors and victims the accused can and will control things better in the future requires lots of hard work from not only the defendant – but often their loved ones too.  But anyone reading this post already knows this.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thompson Reuters.

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