Including Assets-Based Mitigation in Sentencing

Published date01 July 2020
Date01 July 2020
Subject MatterArticles
Criminal Justice Policy Review
2020, Vol. 31(6) 857 –885
© The Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0887403419866887
Including Assets-Based
Mitigation in Sentencing
Elizabeth S. Vartkessian1
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.
criminal justice policy, sentencing, criminal trial, sentencing policy
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.
866887CJPXXX10.1177/0887403419866887Criminal Justice Policy ReviewVartkessian
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,

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