Including Assets-Based Mitigation in Sentencing

• Author: Elizabeth S. Vartkessian
• DOI: 10.1177/0887403419866887
• Published date: 01 July 2020
• Date: 01 July 2020
• Subject Matter: Articles

https://doi.org/10.1177/0887403419866887

Criminal Justice Policy Review

2020, Vol. 31(6) 857 –885

© The Author(s) 2019

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DOI: 10.1177/0887403419866887

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Article

Including Assets-Based

Mitigation in Sentencing

Elizabeth S. Vartkessian1

Abstract

Mitigation evidence consists of information about an accused person that is typically

used to advocate for a less severe sentence. Such evidence most frequently consists

of information related to the crime and personal factors that can be separated into

two broad categories: deficits and assets-based mitigation. This article focuses on the

importance of assets-based mitigation in sentencing and evaluates if and how state

sentencing procedures contemplate and allow for consideration of such evidence. A

content analysis of available state sentencing procedures reveals that states tend to

circumscribe mitigation to factors related to the crime or deficits, but largely neglect

to give a vehicle to consider assets-based mitigation, which should play a central role

in achieving just outcomes. This article therefore argues for reform to sentencing

laws to better accommodate assets-based mitigation by including information related

to the defendant’s capacity for growth, self-improvement, and redemption.

Keywords

criminal justice policy, sentencing, criminal trial, sentencing policy

Introduction

Individualized sentencing is only required in a limited group of criminal cases in the

United States—those which involve the death penalty or sentences of life without the

possibility of parole for juvenile offenders. Its use in this subset of criminal cases

demonstrates the principle that arriving at just punishments should include consider-

ing factors beyond the crime. Much of the jurisprudence concerning individualized

sentencing has focused on death penalty cases because courts have viewed capital

punishment as decidedly different to all other forms of potential penalties (Woodson v.

1Advancing Real Change, Inc., Baltimore, MD, USA

Corresponding Author:

Elizabeth S. Vartkessian, Advancing Real Change, Inc., 309 N. Charles Street, 3rd floor, Baltimore, MD

21201, USA.

Email: evartkessian@albany.edu

866887CJPXXX10.1177/0887403419866887Criminal Justice Policy ReviewVartkessian

research-article2019

858 Criminal Justice Policy Review 31(6)

North Carolina, 1976). Yet much of the same justification for permitting the character

and background of a defendant to be considered when the death penalty is a sentencing

option applies to noncapital cases (Gohara, 2014, 2018). This is especially true with

regard to mitigation evidence.

Mitigation evidence is best understood as a reason to exercise leniency in sentenc-

ing. The most conventional type of mitigation connects to the circumstances of the

offense, such as whether the defendant was a minor participant in the crime or whether

the victim was the aggressor or a party to the criminal act. However, mitigation evi-

dence can also be directly related to the defendant’s personal history, including back-

ground and character evidence. Such personal mitigation can be separated into two

categories: deficits and assets-based mitigation. Deficits-based mitigation relates to a

defendant’s mental and physical disabilities, mental illness, intellectual limitations,

trauma disorders, poverty, experiences of neglect or abuse, or other aspects of a defen-

dant’s history or character that highlight the disadvantage between the defendant and

an average functioning individual.

Deficits-based mitigation has featured prominently in death penalty cases. For

instance, the U.S. Supreme Court has held that a person with intellectual disability

cannot be subject to the same penalties as those with greater mental capacity (Atkins v.

Virginia, 2002). Similarly, the Court has determined that mitigation related to abuse,

parental incarceration, neglect, instability, adverse experiences in foster care, limited

education (Williams v. Taylor, 2000) parental substance abuse, parental abandonment

(Wiggins v. Smith, 2003), and traumatic brain injury (Porter v. McCollum, 2009) are all

relevant considerations in sentencing.

These same cases also acknowledge, however, the need to present a fuller picture

of a defendant beyond the deficits or dysfunction experienced. For example, in

Williams, the Court identified the importance of assets—or positive character traits—

in reaching a just outcome. The Court singled out numerous instances in the defen-

dant’s history that were relevant to sentencing, such as commendations for helping to

infiltrate a prison drug ring; returning a guard’s missing wallet; evidence that Mr.

Williams was among the inmates least likely to act in a violent, dangerous, or provoca-

tive way; evidence of Mr. Williams’s sincere devotion to prison ministry; Mr.

Williams’s capacity to thrive in a more regimented and structured environment; and

his successful completion of classes related to earning a carpentry degree while in

prison (Williams v. Taylor, 2000).

The Supreme Court has been explicit in finding that mitigating evidence does not

need to be connected to the crime (Tennard v. Drekte, 2004), nor it is limited to evi-

dence of irreversible damage or defect (Penry v. Lynaugh, 1989). Rather, it encom-

passes factors about the positive traits and characteristics that speak to the potential of

a defendant to rehabilitate, redeem, grow, or change (Skipper v. South Carolina, 1986).

Such evidence that focuses on the assets or strengths of a defendant is critical to

addressing a defendant’s future behavior, including whether an incarcerated person

can be safely housed in a correctional facility (Miller, 2013; Sorensen & Pilgrim,