Hofstra Law Review
Abstract
Over several years, we have documented over 625 highly aggravated cases where jurors declined to impose the death penalty at sentencing. These cases support our belief that the effective investigation and presentation of mitigating evidence can forestall a death sentence no matter how death-worthy the crime facts may appear at first glance. However, our previous publications shed no light on the specific mitigation evidence that inspired jurors to reject the death penalty in individual cases. This Article summarizes readily available documentary sources from over five hundred cases (more than eighty percent of all the cases in our database), utilizing special verdict forms that enumerated mitigating factors proffered by defense counsel; trial reports that were officially prepared or commissioned for proportionality review; and media reports and other contemporaneous documentation reflecting what was presented in the courtroom or learned from post-sentencing interviews with jurors and lawyers. This contemporaneous objective evidence is augmented in the Article by subjective reports from jurors themselves in the write-in mitigating factors on some of the verdict forms. The diversity of the mitigation identified in this large sample from our database of highly aggravated cases demonstrates that what is effective depends on the uniqueness of each individual human story. There is no single category of mitigation that resonates with jurors in all cases, and the success of mitigation depends on the thoroughness and coherence of the mitigation investigation and presentation. In addition, our review strongly suggests that mitigation does not lend itself to simplistic quantitative analysis because the “diverse frailties of humankind” do not fit into precise and limited categories. Moreover, there is no metric to capture the weight attached to mitigation generally, or by an individual juror for whom it is decisive. Nonetheless, the details from this sample affirm that no matter how vile the crime may appear, the mitigation counternarratives that include a spectrum of specific factors can prevail. Although we reviewed other attempts by scholars, lawmakers, and practitioners to create such taxonomies—including the Model Penal Code of the American Law Institute, the forty different statutory schemes that defined what jurors could consider at sentencing, the types of mitigation explored by the Capital Jury Project in its multi-state interviews, and mitigation manuals developed by capital defense specialists—we based our own categories on the specific mitigating factors endorsed by the jurors in hundreds of the cases in our database, enumerating altogether over thirty-seven hundred specific items. From this large body of empirical evidence, we then delineated a dozen broad categories that best captured a definable set. We ultimately found that five categories account for seventy-five percent of the mitigating factors identified in our study: adverse childhood experiences; mental conditions; fairness concerns; background and character; and incapacitation. However, we also concluded that the power of mitigation derives from the unique individual narrative in each case, supported by convergent evidence from thorough investigation.
Recommended Citation
Stetler, Russell; McLaughlin, Maria; and Garvey, Susan
(2025)
"Mitigation That Worked: Empirical Evidence Of Why Jurors Rejected The Death Penalty In Some Highly Aggravated Capital Cases,"
Hofstra Law Review: Vol. 53:
Iss.
3, Article 4.
Available at:
https://scholarlycommons.law.hofstra.edu/hlr/vol53/iss3/4