Sentence Mitigation

Crimes are frequently committed under “mitigating” circumstances which do not justify or excuse the offense, but go a long way to explain the defendant’s behavior or to provide an understanding for why he or she may have ended up committing the particular offense. For example, when a starving man steals bread to satisfy his hunger, this circumstance is taken into consideration in mitigation of his sentence.

In Texas, courts are required to take into consideration several statutorily identified mitigating factors, including:

• The age of the defendant.

• The defendant's capacity to appreciate the wrongfulness of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.

• The defendant was under unusual or substantial duress, although not such as to constitute a defense to prosecution.

• The degree of the defendant’s participation in the crime was minor, although not so minor as to constitute a defense to prosecution.

• Any other factor that the court deems appropriate to the ends of justice.

Additionally, Texas courts have recognized numerous non-statutory mitigating factors including:

• Remorse

• Lack of criminal history

• Employment history

• Low intelligence

• Prior military service

• Disparity between sentences

• Aberrant behavior

• Prior sexual or emotional abuse

We will attempt to persuade the prosecuting attorney and court through the presentation of evidence of mitigating circumstances that a lenient sentence is appropriate based upon the defendant’s unique background and circumstances. The most persuasive manner in obtaining this objective is to present a thorough, thoughtful, and competent mitigation packet to the prosecuting attorney and court.

In those cases where the preliminary review of the evidence suggests the defendant may ultimately be convicted, the attorney should immediately start thinking about collecting mitigation evidence. Many defense attorneys minimize the importance of mitigation evidence early in their representation. However, in many cases there is nothing more important. Because the collection of mitigation evidence, through interviews and record searches, is both time consuming and often requires special knowledge and expertise, attorneys often retain an experienced mitigation specialist to join the defense team.

A mitigation specialist is an expert qualified by knowledge, skill, experience, and training as a criminal justice, mental health or sociology professional. Their experience is to investigate, evaluate, and present factual, psychological and other mitigating circumstances to persuade the court that for this particular defendant, a certain sentence may be unduly harsh and, thus, inappropriate.

Mitigation evidence necessary for a proper and thorough mitigation packet (or penalty presentation) can be voluminous. The mitigation evidence is in effect a collection of the defendant’s and his or her family’s life history. This evidence should consist of information, documentation, and public records pertaining to relevant aspects of the defendant’s social, educational, medical, and mental health background

Examples of the records that are often sought may include the following:

• Birth records

• Juvenile court records

• Medical records

• Mental health records

• School records

• Marriage/divorce records

• Death certificates

• Employment records

• Military records

• Social services

• Criminal records

• Counseling records

If you or someone you know would like to discuss your sentence mitigation case, please contact The Sheena Law Firm today.