Has any trial judge ever said, “Well, the Defendant has cancer, so I will assess the maximum sentence available,” or “Leukemia? He has leukemia? Then he gets life without!” Such a sadistic lack of compassion—that a person should suffer an enhanced punishment because of a condition that he or she did not purposefully acquire, a condition that causes suffering and disability—tarnishes a reputation for fairness. This happens in every courtroom, however, when we present a defendant who experienced permanent developmental damage.
Defendants get beaten as children. They get drunk in the womb. They get knocked out and come around—too often—with impaired cognitive abilities as a lingering reminder. They get abandoned before they can protect or feed themselves. Like a cancer, these injuries from early childhood can eat through a mind, warp a personality, and make permanent, unsought changes to the individual. Defendants do not trust—they cannot trust. They suspect, they stalk, and they harass. They do not control themselves; they impulsively steal, or strike out with a fist or knife or a gun, even though the consequences are immediate. They do not recognize immediate consequences. They get drunk or high and lose jobs and families. They harm other people, and they harm themselves.
But the courts routinely ignore defendants’ suffering when they would offer compassion for any other individual. The court sees the harm a defendant causes and sees the threat of future harm. In mitigation, we strive to reveal the root causes of the harm, but how can we expose the root cause without exaggerating or amplifying the future threat? I know of several methods that do not work completely.
The “Disease Model” argues that a defendant, through no fault of his own, has succumbed to some crime-inducing “pathogen” such as physical or sexual abuse, addiction, or brain damage, which compels aberrant behavior. But the Disease Model falls short of offering a complete defense; it fails to incorporate any consideration of Free Will. The United States Supreme Court recognized the shortcomings of the Disease Model in a case that offered alcoholism as a defense:
It is one thing to say that if a man is deprived of alcohol his hands will begin to shake, he will suffer agonizing pains and ultimately he will have hallucinations; it is quite another to say that a man has a “compulsion” to take a drink, but that he also retains a certain amount of “free will” with which to resist. It is simply impossible, in the present state of our knowledge, to ascribe a useful meaning to the latter statement. This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions.
Powell v. Texas, 392 U.S. 514, 526, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).
The “Narrative Model” directs trial counsel to explain a defendant’s life in the terms of a familiar story, hopefully with the defendant as the protagonist. See Amsterdam, Anthony, and Bruner, Jerome, Minding the Law, p. 110, Harvard, 2002. A defendant overcomes the hardships he has faced, even hardships he has created, and hopefully the listener will want him to “win” in the end, with “winning” equating to a merciful sentence. However, this model too falls short by requiring a receptive listener to plunge into the story. Often, however, we cannot count on a receptive listener.
The standard “fallback” model involves finding elements that would make an objective person pity the defendant, tossing up these facts, one after another, and hoping one sticks. Yet this model too falls short by failing to provide a context that explains why the court should care about the circumstances that befell the defendant.
None of these models deliver a sure-fire merciful outcome, but the lack of a perfect way, however, does not mean sentencing should be a roll of the dice. Sentencing should be more than an afterthought; it is a search for truth, revealing both what the defendant did and why. Just as we contemplate how best to present evidence at guilt-innocence, obtaining a beneficial sentence requires conscious effort to understand the evidence available, and how best to present it in a persuasive manner that explains the defendant as a unique individual, albeit a flawed one.
By thinking about mitigation in the same manner we think about guilt-innocence presentations, by using a calculated, systemic method (or model) of presenting mitigation, we can provide the maximum opportunity for the court to see the defendant as a damaged human being who possesses free will, but who made decisions in the context of an emotional or chemical or psychological battlefield—not in a safe, calm, and protected office or home. By systemically thinking about mitigation, we take advantage of the defendant’s greatest weapon in the battle for mercy—and that weapon is our time, our attention, and our effort. While we cannot control what a sentencer thinks, we can nonetheless suggest a path for their thought, a path which, with conscientious effort, will lead to a just sentence and mercy.