By Criminal Defense Lawyer Jeremy Rosenthal
“Mitigation” means making something less severe, serious, or painful. In criminal law it refers to learning, seeking and providing facts which reduce someone’s potential punishment.
Mitigation is Important in Every Single Case
A big misunderstanding is mitigation and trying to get an acquittal are mutually exclusive – they are not. People think you somehow admit guilt if you try to take mitigation steps after an arrest such as seeing a mental health professional or entering drug and alcohol treatment.
You can still fight for innocence at the same time you try to explain or lessen the harshness of the possible punishment coming towards defendant. In fact, we are legally bound to do so and it can constitute ineffective assistance of counsel to ignore mitigation.
A solid mitigation case actually strengthens our ability to fight for an acquittal. This is because we are less concerned about severe punishment in the event a jury disagrees with us and finds the defendant guilty despite our best efforts.
Mitigation Which Looks Backwards
Mitigation can help explain why the Defendant is in the predicament they are in. Examples of backward looking mitigation to explain or give context to someone’s actions often include:
- Mental health or psychological disorders
- Bi-Polar Disorder
- Manic episodes
- Past sexual abuse of the accused;
- Past physical abuse of the accused;
- Past or childhood emotional abuse of the accused;
- Addiction and history of addiction of the accused.
When Someone Has a Great History
Another form of backwards mitigation is potentially where an accused has never been in trouble at all. Certainly someone who has been straight as an arrow their entire lives do deserve some credit and lenience in many cases. The same goes for people who really have their act together and are – for example – in school making straight A’s and helping build houses for homeless people on the weekends.
Mitigation which Looks Forward
Any mitigation must have a forward path to be effective. Explaining to the judge or jury an accused has been able to explain or identify why they have a particular problem is great. It lets the jury know the accused isn’t an evil person. But without a path forward to correct things – a judge or jury might feel they need to incarcerate the person to protect society in the future.
Forward mitigation could include steps taken by the accused after the arrest. Examples are endless of the types of steps which can be taken to hopefully re-assure folks criminal behavior won’t repeat itself with the accused. Examples might be;
- Drug and alcohol treatment
- psychological treatment
- Sex offender therapy or treatment
- Rage or anger management treatment.
Examples of Mitigation in Criminal Cases
- A classic and easy to understand example are Driving While Intoxicated cases. I explain to clients everyone at the courthouse including prosecutors, judges and probation officers think (1) someone arrested for DWI is not only guilty – but they’ve probably gotten away with it 100 times we don’t know about; and (2) all people arrested for drunk driving are alcoholics. Those assumptions may be completely fair or unfair – but those are the attitudes we will have to over-come in a case whether we like it or not.
If we can convince the courthouse types not only did the defendant get screwed by being arrested in the first place – but also he’s perfectly fine to drive – it only strengthen’s our overall hand.
Bottom Line on Both Forward and Backward Mitigation
A criminal defense lawyer cannot assume they are just going to win every case no matter how confident we are we will ultimately win. The Courts have held repeatedly to ignore mitigation is ineffective assistance of counsel. Mitigation also helps us strengthen our hand and ability to fight the case on multiple fronts – not just sympathy or correcting certain behavior.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by Thomson Reuters.