Mitigation: Mental Health and Sentencing

AuthorMarcia G. Shein
This is the era of the vanishing trial. The vast majority of cases—state and
federal, misdemeanor and felony—resolve in plea bargains. One of the rea-
sons is that a defendant would prefer the certainty of a particular sentence or
sentencing range rather than a potential conviction at trial with a far greater
penalty. For people with mental disabilities, there is another reason for such
a large number of pleas. As the previous chapters on “Competency to Stand
Trial” and “Criminal Responsibility” show, the legal standards for competent
to stand trial and insane at the time of the act are high. Thus, in the majority
of cases where the accused has some sort of mental disability, that disability
results in being used as a tool in mitigation.
The following two chapters provide guidance for attorneys who are
attempting to strategically and effectively use mental disability as mitigation.
In other words, the chapters discuss how to use mental disability not as
an excuse for conduct but as an explanation. This is a critically important
distinction to make for the benefit of the judge and the prosecutor. The first
chapter by Attorney Marcia Shein is a general guide to all aspects of sen-
tencing. The second chapter by Dr. Elliott Atkins and Attorney Alan Ellis pro-
vides advice on how best to use an expert to assist with mitigation.
• • •
There are often subtle, and sometimes not so subtle, signs that your client
may need to have a mental health evaluation. Learning how to recognize
Mitigation: Mental Health
and Sentencing
Marcia G. Shein

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