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Mitigation Investigation
By Russell Stetler
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Capital Cases columns.
Mitigation Investigation: A Duty That Demands Expert Help But Can’t Be Delegated
For over 30 years, the U.S. Supreme Court has made individualized
sentencing a core constitutional requirement in capital cases. In
Woodson v. North Carolina,1 the Court captured the breadth of potential
mitigating evidence by referring simply to the “diverse frailties of
humankind.”2 A decade later in Skipper v. South Carolina, the Court made
clear that there are no temporal limits to the pre-offense time frame:
redemption and “good adjustment” in jail should be considered even
though they “would not relate specifically to petitioner’s culpability
for the crime he committed.”3
The 21st century Court has reiterated both points. In Tennard v.
Dretke,4 the Court emphasized that no nexus is required between
mitigation and the capital offense, and that there are virtually no
limits on what the defense can introduce (noting the low threshold for
relevance and defining mitigation as what
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