Mitigating factor
A mitigating factor, in law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

, is any information or evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...

 presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges or a lesser sentence.

Death penalty in the United States

In the United States, the issue of mitigating factors is most important in death penalty
Capital punishment in the United States
Capital punishment in the United States, in practice, applies only for aggravated murder and more rarely for felony murder. Capital punishment was a penalty at common law, for many felonies, and was enforced in all of the American colonies prior to the Declaration of Independence...

 cases. In a series of decisions since 1972, the United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 has attempted to make the sentence of death in the United States less arbitrary by emphasizing that the judge or jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...

 must be given the opportunity to consider all mitigating evidence before determining the sentence. Thus the Court has stressed that because of the constitutional requirement of the fundamental respect for human dignity set out by the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...

 to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, information must be provided on the character and previous history of the defendant, as well as the circumstances surrounding the particular offense.

The Supreme Court in Penry v. Lynaugh
Penry v. Lynaugh
Penry v. Lynaugh, , sanctioned the death penalty for mentally retarded offenders because the Court determined executing the mentally retarded was not "cruel and unusual punishment" under the Eighth Amendment...

, and subsequently the Fifth Circuit Court of Appeals
United States Court of Appeals for the Fifth Circuit
The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...

 in Bigby v. Dretke
Bigby v. Dretke
Bigby v. Dretke 402 F.3d 551 , the U.S. Court of Appeals for the Fifth Circuit heard a case appealed from the United States District Court for the Northern District of Texas on the issue of the instructions given to a jury in death penalty sentencing...

, remanded cases in which the jury instructions
Jury instructions
Jury instructions are the set of legal rules that jurors should follow when the jury is deciding a civil or criminal case. Jury instructions are given to the jury by the jury instructor, who usually reads them aloud to the jury...

 in death penalty cases did not ask the jury to consider as mitigating factors the defendant's mental health
Mental health
Mental health describes either a level of cognitive or emotional well-being or an absence of a mental disorder. From perspectives of the discipline of positive psychology or holism mental health may include an individual's ability to enjoy life and procure a balance between life activities and...

, saying that the jury be instructed to consider mitigating factors when answering unrelated questions. The Supreme Court's rulings have broadened the definition of mitigating evidence in the United States and systematically removed the procedural barriers to jury consideration and weight of that evidence.

The effect of these decisions is to broaden the definition of mitigating factors related to mental illness with the U.S. justice system to be more consistent with psychiatric and psychological understanding of the effects on a person's life of these mental disorders. As a result of these decisions, even in the absence of a direct connection between the illness and the illegal action (as is required in the guilt phase of the insanity defense), the court acknowledges that the effects of a severe mental illness have pervasive effect on a person's behavior and can therefore be a relevant consideration in death penalty considerations. If all relevant mitigating factors are not considered in a death penalty case, the punishment can be consider "cruel and unusual", the Supreme Court ruled in Tennard v. Dretke, a case in which the prosecution sought to exclude evidence of a low IQ in the penalty phase of the trial. There is also an ongoing tendency of the Supreme Court to seek to include evidence of a defendant's potential for rehabilitation and a law abiding future.

Contrary use of mental illness as aggravating factor

However, a contrary opinion was rendered in People v. Smith where the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...

 upheld the prosecution's use of evidence of the defendant's mental illness presented by a psychologist
Psychologist is a professional or academic title used by individuals who are either:* Clinical professionals who work with patients in a variety of therapeutic contexts .* Scientists conducting psychological research or teaching psychology in a college...

, Dr. Chris Hatcher
Chris Hatcher (psychologist)
Chris Hatcher, Ph.D., was a clinical psychologist at the University of California at San Francisco who was an expert in police and forensic psychology. He dedicated his professional life to the study of violence and its prevention. He died unexpectedly at the age of 52.-Workplace violence:Dr...

, who presented "profile evidence" as an aggravating factor in the sentencing phase of a capital crime
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...

 (in this case the murder of a child) after the defendant pleaded guilty. This opinion was rendered, even though California has a clear statutory bar to this application. The defendant had argued that this use of psychological evidence violated a California statute prohibiting the use of serious mental illness as an aggravating factor. However, the court ruled that the psychologist's diagnosis, "sadistic pedophilia", obtained by profiling
Offender profiling
Offender profiling, also known as criminal profiling, is a behavioral and investigative tool that is intended to help investigators to profile unknown criminal subjects or offenders. Offender profiling is also known as criminal profiling, criminal personality profiling, criminological profiling,...

 and not through any contact with the defendant, assisted the jury in understanding the motivation and circumstances of the crime and therefore aided in the proper sentencing of the defendant.

In addition to sexual disorders, psychopathy
Psychopathy is a mental disorder characterized primarily by a lack of empathy and remorse, shallow emotions, egocentricity, and deceptiveness. Psychopaths are highly prone to antisocial behavior and abusive treatment of others, and are very disproportionately responsible for violent crime...

 is sometimes used directly and indirectly (to negate expressions of remorse) as aggravation, including in capital cases (this is not to say that it is not sometimes regarded contrarily as mitigation). It remains controversial whether a psychiatric test should be such a determinant.

Limits on mitigating factors in the United States

The Supreme Court held in Lockett v. Ohio that a defendant facing the death penalty is entitled to present any aspect of character or record, and any circumstance of the offense that might serve as a basis for a sentence less than death. The court may limit evidence not pertaining to these issues as "irrelevant". Although it has been argued that the defendant should be able to offer evidence questioning the morality of the death penalty or descriptions of the execution process, no court has allowed such testimony.

Clinical participation

In the U.S., most mitigating factors are presented in way that are best described by clinical evaluations of the defendant and the circumstances, thus involving psychological or psychiatric analysis in the presentation to the court. Approximately one half of U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

s allow evidence that the defendant was under extreme mental or emotional distress
Stress (medicine)
Stress is a term in psychology and biology, borrowed from physics and engineering and first used in the biological context in the 1930s, which has in more recent decades become commonly used in popular parlance...

 as a mitigating factor, if it is accompanied by an evaluation that the defendant's ability to appreciate the criminal aspect of his offense (mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...

), or his ability to control his behavior to meet the requirements of the law, was impaired.

There is empirical evidence that expert testimony on future dangerousness has less effect on jury decisions than does expert testimony on the defendant's mental functioning. However, there is no evidence so far that expert testimony does influence the jury on sentencing outcomes in death penalty cases.

See also

  • Capital punishment in the United States
    Capital punishment in the United States
    Capital punishment in the United States, in practice, applies only for aggravated murder and more rarely for felony murder. Capital punishment was a penalty at common law, for many felonies, and was enforced in all of the American colonies prior to the Declaration of Independence...

  • Federal Sentencing Guidelines
    Federal Sentencing Guidelines
    The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...

  • Strickland v. Washington
    Strickland v. Washington
    In Strickland v. Washington, , the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel...

  • Settled insanity
    Settled insanity
    Settled insanity is defined as a permanent or "settled" condition caused by long-term substance abuse and differs from the temporary state of intoxication...

  • Tennard v. Dretke
    Tennard v. Dretke
    Tennard v. Dretke, 542 U.S. 274 , was a United States Supreme Court case in which the court was asked whether evidence of the defendant's low IQ in a death penalty trial had been adequately presented to the jury for full consideration in the penalty phase of his trial...

External links

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