For example, some courts have ignored as a mitigating factor the defendant's waiver of the right to a jury trial. One court rejected harsh prison conditions the defendant faced as a mitigator. But as long as it bears some relation to the crime, defense lawyers often try to present just about every fact in the defendant's favor at sentencing.
Full Answer
Mitigating and aggravating factors are intended to help judges craft sentences that are consistent and proportional to the severity of the offense and the defendant's criminal history. Judges can't use a fact that is an element of the crime to impose an aggravated (higher than default) sentence.
The consideration of mitigating evidence by the judge or jury sentencing a person to the death penalty is a constitutional requirement (U.S. Constitution 8th and 14th Amendments).
To prove ineffective assistance, a defendant must show (1) that their trial lawyer's performance fell below an "objective standard of reasonableness" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v.
Constructive denial of counsel occurs if counsel fails to mount any defense on behalf of his or her client. In Bell v. Cone, the U.S. Supreme Court examined a defense counsel's conduct during a capital sentencing hearing.
Capital mitigation consists of evidence that is presented in a death penalty trial to obtain a sentence other than death.
More commonly, criminal statutes do not carry mandatory sentences....For instance, judges may typically consider factors that include the following:the defendant's past criminal record, age, and sophistication.the circumstances under which the crime was committed, and.whether the defendant genuinely feels remorse.
Proving legal malpractice in a criminal matter can be difficult, because courts tend to defer to attorneys. Thus, they presume that the accused attorney provided “reasonable professional assistance” to the former client.
When attorneys are found to be ineffective, they are frequently: sanctioned by the state bar association.
Generally, an attorney is considered ineffective if there is reasonable cause to believe that your lawyer's unprofessional mistakes were serious enough to change the outcome of your case. In other words, you may have been found not guilty or received a lesser sentence if it wasn't for your attorney's errors.
Lockhart , the Court applied the Strickland test to attorney decisions to accept a plea bargain, holding that a defendant must show a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial.
A. defendant who claims that ineffective assistance of counsel denied. their Sixth Amendment right “must generally demonstrate prejudice. to the result of the trial.” 2.
The Sixth Amendment gives defendants the right to counsel in federal prosecutions. However, the right to counsel was not applied to state prosecutions for felony offenses until 1963 in Gideon v. Wainwright, 372 U.S. 335.
Ring v. ArizonaIn a 7-2 decision in the case of Ring v. Arizona, the U.S. Supreme Court held that a defendant has the right to have a jury, rather than a judge, decide on the existence of an aggravating factor that makes the defendant eligible for the death penalty.
The Sixth Amendment guarantees the rights of criminal defendants, including the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are and the nature of the charges and evidence against you.
According to the Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures; freedom from cruel and unusual punishment; assistance of counsel; protection against self-incrimination; confrontation of opposing witnesses; a speedy trial; compulsory process for obtaining ...
Mitigation in the sentencing of criminal offences Mitigation is any aspect of a case that reduces the severity of the sentence passed, either the length of sentence or type. Aggravating features are factors that increase the severity of a sentence.
The term mitigate means to lessen in severity. Mitigating circumstances are factors associated with a crime that can lessen the severity of that cr...
Mitigating factors are facts that can be used to decrease the severity of a crime or the sentence someone receives. Aggravating factors are facts t...
An example of a mitigating factor is drug addiction. A person who is charged with possession of narcotics may have their sentence lessened if they...
The Capital Case Section (CCS) within the Criminal Division was created in response to the Department's increased involvement in capital litigation and charged with overseeing the Department's capital prosecutions.
CAPITAL CRIMFES AS DEFINED IN AMERICAN LAW to the normative definition of murder in the first degree, which includes premedita-tion, malice aforethought, done by poisoning, from ambush, etc., first degree murder
Defendants who are convicted of a felony for a non-capital offense are sentenced to a period of imprisonment, as well as additional fines and fees.Defendants who are convicted of a misdemeanor for a non-capital offense may be sentenced to jail as well, but it is more likely they will receive probation and be ordered to pay mandatory restitution, fines, and fees.
SOURCE: Federal Death Penalty Resource Counsel, Statutes; Bureau of Justice Statistics: Capital Punishment 2012. Although not listed by BJS, the following offenses are also punishable by death under the federal statute, though it is not clear that the death penalty would be constitutional for these offenses under Kennedy v.Louisiana (2008) since they do not require a murder:
The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless established by a preponderance of the evidence. Mitigating factors. In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider mitigating factors,including the following: ...
The defendant shall be permitted to reply. The Government shall then be permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt.
In the sentencing hearing, information may be presented as to matters relating to any of the aggravating or mitigating factors set forth in subsections (m) and (n) of this section, or any other mitigating factor or any other aggravating factor for which notice has been provided under subsection (h) (1) (B) of this section. Where information is presented relating to any of the aggravating factors set forth in subsection (n) of this section, information may be presented relating to any other aggravating factor for which notice has been provided under subsection (h) (1) (B) of this section. Information presented may include the trial transcript and exhibits if the hearing is held before a jury or judge not present during the trial, or at the trial judge's discretion. Any other information relevant to such mitigating or aggravating factors may be presented by either the Government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Government and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the aggravating or mitigating factors and as to appropriateness in that case of imposing a sentence of death. The Government shall open the argument. The defendant shall be permitted to reply. The Government shall then be permitted to reply in rebuttal. The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless established by a preponderance of the evidence.
The Government and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the aggravating or mitigating factors and as to appropriateness in that case of imposing a sentence of death.
The Capital Case Section must be immediately notified when: A capital offense is charged or when an indictment is obtained pertaining to conduct that could be, but has not been, charged as a capital offense. The point-of-contact must immediately provide the Section with a copy of the indictment and case number.
The Capital Review Committee will make a recommendation to the Attorney General through the Deputy Attorney General on whether the notice of intent to seek the death penalty should be withdrawn.
In determining whether it is appropriate to seek the death penalty, the United States Attorney or Assistant Attorney General, the Capital Review Committee, the Deputy Attorney General, and the Attorney General will determine whether the applicable statutory aggravating factors and any non-statutory aggravating factors sufficiently outweigh the applicable mitigating factors to justify a sentence of death or , in the absence of any mitigating factors, whether the aggravating factors themselves are sufficient to justify a sentence of death. Reviewers are to resolve ambiguity as to the presence or strength of aggravating or mitigating factors in favor of the defendant. The analysis employed in weighing the aggravating and mitigating factors should be qualitative, not quantitative: a sufficiently strong aggravating factor may outweigh several mitigating factors, and a sufficiently strong mitigating factor may outweigh several aggravating factors. Reviewers may accord weak aggravating or mitigating factors little or no weight. Finally, there must be substantial, admissible, and reliable evidence of the aggravating factors.
Extenuating circumstances may include, for example, a need to present capital-eligible charges to comply with the Speedy Trial Act, to address public safety concerns, or a need to collect and/or analyze additional information necessary to determine whether to recommend seeking the death penalty.
Prior to seeking an indictment for an offense potentially punishable by death , the United States Attorney or Assistant Attorney General shall consult with the Capital Case Section. This consultation will help streamline the process of preparing submissions made pursuant to this Chapter, ensure that charging documents are crafted in accordance with applicable legal and policy requirements, and help ensure that applicable deadlines are met. In the event the Attorney General determines the death penalty will be sought in a particular case, the Capital Case Section can provide valuable litigation advice and support, as well as trial assistance.
If a United States Attorney or Assistant Attorney General wishes to withdraw the notice, the United States Attorney or Assistant Attorney General shall advise the Assistant Attorney General for the Criminal Division through the Capital Case Section of the reasons for that request. The United States Attorney or Assistant Attorney General should base the withdrawal request on material changes in the facts and circumstances of the case from those that existed at the time of the initial determination.
In any case in which the Attorney General has directed the filing of a notice of intention to seek the death penalty, the United States Attorney or Assistant Attorney General shall not file or amend the notice until the Capital Case Section has approved the notice or the proposed amendment.
Mitigating circumstances may help to reduce a felony sentence, or in the case of a capital felony, could tip the balance to where the criminal defendant is sentenced to a life sentence, not the death penalty. The following may be considered: The criminal defendant does not have a criminal record or history; ...
The defendant’s capacity and competency made it difficult for the defendant to fully appreciate the consequences of his/her actions;
Aggravating Factors. Aggravating factors may be introduced to show that the defendant deserves the death penalty but the factors are limited to: The criminal history of the criminal defendant, more specifically if he or she has been previously convicted of another capital felony or a felony where violence played a role; ...
For a criminal offense that rises to the level of a capital offense, it will be during this sentencing phase where the trial judge and the jury will determine whether the criminal defendant should receive a life sentence or the death penalty. Criminal offenses that are considered to be capital in Florida include homicide, offenses committed as a result of the felony murder rule, and sexual assault and battery where the victim is a minor.
The capital felony was committed in an attempt to avoid capture or during the escape from custody;
The victim of the capital felony was under the age of 12 years old; The victim was either a police officer while performing his/her duties or a member of a vulnerable population due to advanced age or mental disability; The capital felony was committed due to the criminal defendant’s association with a gang; and/or.
With capital felonies, a life sentence or the death penalty are on the line. With a life felony, only a life sentence is permitted and not the death penalty. With regular felonies, the sentence may be dictated by a mandatory minimum sentence or might be up to the discretion of the court.
As soon as an attorney realizes that they are not performing “to the levels of our professional responsibility rules,” the attorney must act immediately, warns Laura McLaughlin, member of the Section Council. “Waiting until a disciplinary action to raise a mental health concern may provide little support as a mitigating defense,” adds McLaughlin.
Additionally, the court held double jeopardy does not apply to attorney discipline. Although this was a case of first impression in Washington, it appears to follow other jurisdictions in finding that double jeopardy would not apply.
Compassion fatigue qualifies as a mitigating factor in lawyer misconduct bar disciplinary proceedings, according to a state supreme court that considered the question. Still, the court upheld the attorney’s disbarment.
Maryland’s courts have generally recognized the following 14 mitigating factors when fashioning a sanction: absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct;
The style and severity of the sanction will depend on the facts of each case, taking into account any mitigating or aggravating factors; There are generally 14 recognized mitigating factors; 12 aggravating factors; And some mitigating and aggravating factors are more important than others.
Courts have generally recognized the following 12 mitigating factors when fashioning a sanction: prior disciplinary offenses; a dishonest or selfish motive; a pattern of misconduct; multiple offenses;
One of the last things a court does in the Maryland attorney disciplinary process is examine what kind of sanction, if any, to impose . As part of its analysis, the court: Must fashion a sanction for the attorney that is commensurate with the nature of the misconduct; The style and severity of the sanction will depend on the facts of each case, ...
In imposing sanctions on attorneys, courts seek to “to protect the public and the public’s confidence in the legal profession rather than to punish the attorney ... [and] to deter other lawyers from violating the Rules of Professional Conduct.”.
multiple offenses; bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; submission of false evidence, false statements, or other deceptive practices during the disciplinary process; refusal to acknowledge the wrongful nature of conduct;
The Capital Case Section must be immediately notified when: A capital offense is charged or when an indictment is obtained pertaining to conduct that could be, but has not been, charged as a capital offense. The point-of-contact must immediately provide the Section with a copy of the indictment and case number.
The Capital Review Committee will make a recommendation to the Attorney General through the Deputy Attorney General on whether the notice of intent to seek the death penalty should be withdrawn.
In determining whether it is appropriate to seek the death penalty, the United States Attorney or Assistant Attorney General, the Capital Review Committee, the Deputy Attorney General, and the Attorney General will determine whether the applicable statutory aggravating factors and any non-statutory aggravating factors sufficiently outweigh the applicable mitigating factors to justify a sentence of death or , in the absence of any mitigating factors, whether the aggravating factors themselves are sufficient to justify a sentence of death. Reviewers are to resolve ambiguity as to the presence or strength of aggravating or mitigating factors in favor of the defendant. The analysis employed in weighing the aggravating and mitigating factors should be qualitative, not quantitative: a sufficiently strong aggravating factor may outweigh several mitigating factors, and a sufficiently strong mitigating factor may outweigh several aggravating factors. Reviewers may accord weak aggravating or mitigating factors little or no weight. Finally, there must be substantial, admissible, and reliable evidence of the aggravating factors.
Extenuating circumstances may include, for example, a need to present capital-eligible charges to comply with the Speedy Trial Act, to address public safety concerns, or a need to collect and/or analyze additional information necessary to determine whether to recommend seeking the death penalty.
Prior to seeking an indictment for an offense potentially punishable by death , the United States Attorney or Assistant Attorney General shall consult with the Capital Case Section. This consultation will help streamline the process of preparing submissions made pursuant to this Chapter, ensure that charging documents are crafted in accordance with applicable legal and policy requirements, and help ensure that applicable deadlines are met. In the event the Attorney General determines the death penalty will be sought in a particular case, the Capital Case Section can provide valuable litigation advice and support, as well as trial assistance.
If a United States Attorney or Assistant Attorney General wishes to withdraw the notice, the United States Attorney or Assistant Attorney General shall advise the Assistant Attorney General for the Criminal Division through the Capital Case Section of the reasons for that request. The United States Attorney or Assistant Attorney General should base the withdrawal request on material changes in the facts and circumstances of the case from those that existed at the time of the initial determination.
In any case in which the Attorney General has directed the filing of a notice of intention to seek the death penalty, the United States Attorney or Assistant Attorney General shall not file or amend the notice until the Capital Case Section has approved the notice or the proposed amendment.