Mitigation shouldn’t be optional. It should be a part of every zealous defense. The Supreme Court of appeals of West Virginia has repeatedly cautioned that “silence” may operate as a waiver of objections to error and irregularities at the trial which, if reasonably made and presented, might have been regarded as prejudicial.” (State v Petry WV 488, 595, 251, SE2d 780, 785). Some attorneys may see mitigation as offering an excuse. In reality, mitigation is an explanation – often a comprehensive explanation – not an affirmative defense. It gives the judge the circumstances surrounding the defendant’s life and the behavior or circumstances that lead to the instant offense.

The American Bar Association’s Criminal Justice Standards on Defense Function state in Standard 4-8.3(d) Defense Counsel should gather and submit to the presentence officers, prosecution and court as much mitigating information relevant to sentencing as reasonably possible, and in an appropriate case, with the consent of the accused, counsel should suggest alternative programs of service or rehabilitation or other non-imprisonment options based on defense counsel’s exploration of employment, education, and other opportunities made available by community service.

We are saddened and don’t understand when defense attorneys do not choose to use mitigation at sentencing. It’s not likely to impact sentencing adversely, yet, defense attorneys are cautious regarding the adverse impact and decide to exclude mitigation.

While we can’t say that all judges appreciate attorneys who support mitigation in their client’s cases, we can state that the judges in our cases have been impressed with the extent of mitigation, the knowledge of the client and their family, and the telling of the client’s story. We all appreciate having all the facts before making a decision. We don’t believe judges are any different. You can increase your reputation with judicial counsel by using mitigation.

If you want to utilize mitigation to obtain a lesser sentence for your clients, call the Downward Departure Specialists at 916-224-4680. We are experts and here to help.