Benefits and Risks of Using “Diminished Capacity” Mitigation in Death Penalty Proceedings

Abstract

A sample of capital trials in North Carolina was analyzed to determine the impact on death sentencing of introducing mitigators related to diminished capacity on behalf of defendants. The results show that mitigators of this type were frequently submitted to the jury for consideration, and if accepted, the chances of a defendant being sentenced to death were diminished. However, when these mitigators were submitted but not accepted, the defendant's likelihood of receiving a death sentence was substantially escalated. These findings suggest a need for attorneys to carefully weigh the advantages and disadvantages of presenting diminished capacity mitigators in capital trials, and if choosing to do so, the absolute necessity of convincing the jury of their validity.

Citation

Bjerregaard, B., Dwayne Smith, M. and Fogel, S.J. (2005), "Benefits and Risks of Using “Diminished Capacity” Mitigation in Death Penalty Proceedings", Hartwell, S.W. (Ed.) The Organizational Response to Persons with Mental Illness Involved with the Criminal Justice System (Research in Social Problems and Public Policy, Vol. 12), Emerald Group Publishing Limited, Leeds, pp. 111-134. https://doi.org/10.1016/S0196-1152(05)12006-7