He did it because of a genetic predisposition; She did it because of a head injury from being abused as a child. Which story is more powerful?
In the world of sentencing – be it in a capital case where life is literally on the line, or in a non-capital prosecution where loss of liberty and/or wealth may be in play – the goal of the advocate is to mitigate – to seek to explain the harm occasioned by the defendant in such a way as to make the accused less blameworthy.
Lawyers do not necessarily excel at this. As one article, which sought to tout mitigation strategies as key to representing white collar defendant, noted,
It should come as no surprise that most attorneys, even experienced defense attorneys, have no concept of how mitigation evidence is developed and used in capital cases. Why would they? Aside from a small cadre of nationally-recognized capital defense experts, a criminal defense attorney will probably never try a capital case and never put on mitigation evidence. That is especially true for white collar defense counsel.
ARTICLE: CAN THE CEO LEARN FROM THE CONDEMNED? THE APPLICATION OF CAPITAL MITIGATION STRATEGIES TO WHITE COLLAR CASES, 62 Am. U.L. Rev. 1, 9 (2012).
That same article sought to trace the origins of this art. “Capital mitigation as we know it today, loosely defined as “the empathy-evoking evidence that attempts to humanize the accused killer in death penalty cases,” begins with the modern era of the death penalty.”
The lessons from the death penalty arena, and the world of mitigation efforts, continue to accrue. So let’s return to the question at the beginning of this article. Which mitigation history will engender more sympathy – a genetic defect that the defendant truly had no role in creating, or an injury suffered at the hands of another?
Intuition might give the following answer – the two are equal, because in each the defendant was given a bad break. But recent research says the injury story evokes more sympathy than the congenital condition. Here is an excerpt from the article:
[O]rdinary judgments of blame, punishment, and other aspects of moral agency are sensitive to information about the etiology of psychological impairments in criminal offenders…[O]ffenders whose psychopathology was because of environmental causes were seen as less deserving of moral sanction than those whose pathology was genetic in origin; indeed, offenders whose pathology was genetic were judged no less negatively than offenders whose pathology was given no etiological explanation at all.
…[We predicted that] childhood abuse would produce greater mitigation in our studies because our vignettes, unlike those used in earlier research, included details about the abuse suffered. This prediction was borne out by our results.
Robbins and Litton, Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency, This article was published Online First September 21, 2017., 24 Psych. Pub. Pol. and L. 118, 124-125.
What is the upshot? No stone – be it genetic or human-induced trauma – may be left unturned when searching for mitigation. But when crafting the mitigation story, knowing how these causes are perceived as effecting blameworthiness is itself critical.