The Mitigation
Expert's Role Is To
Complement The
Lawyer's Role


Mitigation is a bio-psychosocial evaluation of the client’s social and psychological history informed by the facts of the case with appropriate recommendations as a means to minimize the negative legal outcome.

Mitigation was made law by the Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003), which found that a lawyer’s failure to procure a psychosocial report explaining the troubled background of a defendant in a capital case was an error of counsel. Wiggins has been used more broadly in conceptual terms and today mitigation is used not just in death penalty cases but in almost every kind of criminal issue, ranging from relatively minor offenses to serious white-collar crime.

The mitigation expert’s role should complement the lawyer’s role in that the lawyer advocates for the legal rights of the client, while the mitigation expert advocates for the client through professional clinical expertise illuminating all possible issues in the defendant’s background to effectuate a better legal outcome. While lawyers tend to think in linear terms (black letter law) mitigation experts tend to consider broader systemic issues that affect the defendant and his case.


No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. 18 USC § 3661

It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. Justice Kennedy. Koon v. U.S. 518 U.S. 81,113 (1996).

...district courts should not hesitate to use their discretion in devising sentences that provide individualized justice. U.S. v. Williams 65 F.3d 301, 309-310 (2d Cir. 1995).

U.S. v. Booker, 543U.S.220 (2005) stands for the proposition that the guidelines are now “effectively advisory” and mitigation has found its rightful place in jurisprudence. Moreover, the Guidelines “do not require a judge to leave compassion and common sense at the door to the courtroom." U.S. v. Johnson, 964 F.2d 124, 125 (2d Cir.1992).

If the 600-plus pages of the most recent set of sentencing guidelines have taught us anything, it is that punishment cannot be reduced to an algorithm. U.S. v. Myers , 2005 WL 165314, *1 (S.D. Iowa Jan. 26, 2005).


• Humanize client through a sympathetic narrative
• Induce empathy for the reader
• Document client’s life history
• Contextualize client’s conduct
• Express client’s remorse & regret
• Professional expression can replace self-expression
• Stress family’s physical,psychological,and financial hardships
• Illustrate client’s community ties
• Illustrate educational and employment ties


• What did the client’s past look like?
• How serious is the offense?
• What role did the client play?
• Will the client likely repeat this behavior?
• Will incarceration promote deterrence?
• What will promote justice/respect for the law?
• What will the client’s experience be like in prison?
• Does he require educational, vocational, medical, or psychiatric assistance?
• What kind of rehabilitation is needed and has it already started?
• Has the client accepted responsibility for his wrongdoing (remorse and regret), and what to extent?
• Has restitution already started? Is it possible?
• What is a fit punishment? Has the client already been punished? What is the least harsh alternative?
• Are there alternatives to jail that would better serve the client, family, or community?
• Who will be harmed or protected by incarceration?
• What are the family’s needs?
• What will the client’s future look like?