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March 2014 , Page 46 

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New Partners and New Opportunities in The Defense of Children Facing Life Without Parole

By John Hardenbergh

“So Graham and Roper and our individualized sentencing cases alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. … It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional.” 

— Miller v. Alabama1  

“Your loved one has been arrested. … The mitigating factor here will be how well informed you chose to be about what is possible inside the law. Ask questions. Get creative. Be unafraid.” — Mother of a person convicted as a teenager who was sentenced to life without parole on working with a defense team 

In June 2012, the U.S. Supreme Court held in Miller v. Alabama that the practice of sentencing children to mandatory life without parole violates the constitutional prohibition against cruel and unusual punishments. In doing so, it also provided attorneys representing people facing life without parole for crimes that occurred when they were under 18 with new opportunities and obligations to present a universe of mitigating evidence that would counsel in favor of imposing some other lesser sentence. In collecting and presenting this evidence, the person’s family and other loved ones can be crucial partners and will often be the legal team’s primary source of information about the defendant’s life, family history, and social context. While creating these collaborative relationships can be challenging, partnering in new ways with clients’ families and loved ones, as well as integrating mitigation specialists and forensic social workers into the defense team, will give these defendants a much better chance of avoiding the most extreme available sentences.

This opportunity and obligation to present a mitigating narrative is rooted in the Court’s recognition, in both Miller and its predecessor Graham v. Florida, that the sentence of life without parole and the death penalty share certain similarities. In Graham, the Court noted that while “the state does not execute the offender sentenced to life without parole … the sentence alters the offender’s life by a forfeiture that is irrevocable.”2 The Miller Court similarly viewed the sentence of life without parole for youthful offenders as an “ultimate penalty” that requires safeguards similar to those provided to people facing execution.3 And although there are obvious distinctions between the two sentences, it should be noted that both sentences end with the death of the incarcerated individual.

In mitigation investigations, a client’s family and other loved ones often can provide a wealth of relevant evidence that attorneys should find useful in preparing a mitigation narrative. Family members often have the best access to the people who can testify to the defendant’s character, gather the relevant files and documents, share knowledge of the defendant’s formative experiences, and provide multigenerational family histories. And if the person is incarcerated, family members may be the most reliable and available point of contact. It is essential that the relationship between the family and the defense team be as collaborative as possible. 

Unfortunately, certain characteristics of the criminal justice system, including the ethical requirement of zealous advocacy on behalf of one’s client and ever-increasing case loads, work against the creation of such a collaborative partnership. In response to this challenge, attorneys defending youth facing life without parole would be wise to borrow a page from the experience of the capital defense community by partnering with mitigation specialists and forensic social workers. These professionals, by inclination and training, have a set of skills that can strengthen the relationship between the legal team and the client’s loved ones, which in turn fosters the collaboration necessary to win these cases.

Necessity of Presenting A Mitigation Narrative

Beyond the parallels between the death penalty and life-without-parole sentences already discussed, both Graham and Miller rely on legal approaches that had previously been reserved for death penalty cases. In coming to its holding, the Court drew on two lines of cases, both of which developed out of the capital punishment context. The first are those cases declaring the most serious punishments unconstitutional to certain discrete categories of criminal defendants. This line includes cases such as Coker v. Georgia (prohibiting the death penalty for people convicted of rape of an adult),4Atkins v. Virginia (prohibiting the death penalty for mentally disabled individuals),5 and Roper v. Simmons (abolishing the juvenile death penalty).6Graham (prohibiting life without parole for children convicted of nonhomicide crimes) was the first case to export this categorical approach from the capital punishment context and apply it to other sentences.

However, Miller also imported another line of cases from the capital context that requires individualized sentencing or consideration of the whole person in his or her social context before the most severe punishments can be imposed. This line had its origins in Woodson v. North Carolina, which prohibited mandatory death sentences because they prohibited consideration of “the character and record of the individual offender or the circumstances” of the offense, and “exclud[ed] from consideration … the possibility of compassionate or mitigating factors.”7 In particular, the Miller Court took note of cases that highlighted youth and its characteristics as important factors that needed to be considered. Those cases included Johnson v. Texas8 and Eddings v. Oklahoma,9 which characterized youth as a “condition of life when a person may be most susceptible to influence and to psychological damage.”

This second line of cases did not stop with the early decisions requiring courts to allow the introduction of certain categories of mitigating evidence in capital defense. In the early 2000s, the Court began emphasizing the ethical imperative of thorough mitigation investigations in capital cases. Beginning with Williams v. Taylor,10 and continuing with Wiggins v. Smith11 and Rompilla v. Beard,12 the Court began to vacate death penalty sentences because attorneys failed to provide effective assistance of counsel when they did not sufficiently investigate mitigating evidence about the defendant’s life and social background. Given the Miller Court’s reliance on Woodson and its progeny, as well as the Court’s repeated comparisons of the death penalty and juvenile life without parole, it is reasonable to expect that it will insist on similar ethical responsibilities in both contexts.

Working With Family Members in Mitigation Investigations

Engagement with a client’s family members and loved ones is essential in order to adequately represent an individual, particularly a youth, charged with a serious crime, and it is vital that these people not become alienated from the effort to collect and present mitigating evidence. However, several obstacles stand in the way of creating meaningful and effective partnerships with a client’s family members. Many lay people find experiences with the criminal justice system in general to be bewildering, frustrating, and alienating. Often, family members of people accused or convicted of crimes are frustrated by the failure of their loved one’s attorney or the judge to keep them informed, to explain the law or strategy, or to consult with them as much as they would like. Visiting one’s loved one in prison or jail or seeing an individual shackled in court can be a frightening and demoralizing experience. And the tendency of lawyers and judges to speak about their loved one using technical jargon can leave family members feeling as if they have no one to help them navigate this unfamiliar system.

Unique features of the investigation and construction of a mitigating life history also can be particularly alienating and upsetting in ways that make effective collaboration with the legal team difficult. In the context of mitigation hearings, the family histories of people charged with crimes can be dark and damaging, full of neglect, physical and emotional abuse, and substance use. In the words of the Miller decision, they can be “brutal” and “dysfunctional.”13 And there is truth to this perspective. The connection between childhood abuse and later violent behavior is well-established.14 Certainly, an investigation of a client’s exposure to violence and abusive environments is essential for the preparation of a mitigating life history and, at least in the capital context, it can be considered ineffective assistance of counsel to fail to conduct such an investigation.15  

However, this black and white view of criminal defendants’ families does not necessarily reflect how their families’ dynamics are understood or experienced by the people involved. Even the most abusive or otherwise dysfunctional relationships are almost never characterized by a complete absence of love or affection, and family members may feel that overly negative portrayals of their family fail to fairly depict the nuances of their interpersonal relationships. Furthermore, family members of people accused or convicted of homicide report that they are often made to feel guilty for the crime committed by their loved one.16 This externally imposed guilt may be compounded by a family member’s actual feelings of shame and inadequacy even though such feelings are often unjustified. In fact, the mitigation process itself can be inherently alienating in that it implies a degree of culpability on the part of family members.17 It also can require talking publicly about aspects of his or her life experience that he or she may not be proud of, rehashing a family member’s own traumatic experiences, and reopening old wounds.

Additionally, legal ethical standards themselves unavoidably constrain lawyers’ practices in ways that can alienate family members from the project of constructing a mitigating narrative. Primarily, the universal requirement that attorneys place the interests of their clients above all others can leave family members feeling excluded from the defense effort. This is also not unique to the context of developing mitigation narratives. Parents, in particular, may have trouble understanding that the attorney’s client is their son or daughter and not themselves.18 Particularly, if they are paying the legal fees or if the defendant is still a child, family members may feel more entitled to a greater role in setting legal strategy or access to confidential information than is permitted by ethical rules.

There are also aspects of defense practice that are unique to mitigation hearings in ways that lead attorneys to view family members in a manner that can be particularly alienating. The investigation of mitigating factors by lawyers representing people charged with capital offenses can be viewed by family members as reducing them to “object status” — as a thing to be investigated rather than as a dynamic system of individual subjects with their own agency.19 And the construction of this mitigating narrative will necessarily take precedence over the well-being of the family members. Ultimately, an essential purpose of mitigation defense is to present a story of a family that is beneficial to the client, even if it is not the story that the family would tell itself.

Attorneys in this position who want to successfully represent their clients should consider looking to the standards of representation developed for capital representation, in particular the ongoing regularization of the use of mitigation experts and forensic social workers. These experts’ ethics and world view counterbalance the attorneys’ instincts to view families as objects of investigation and are trained to spend hundreds of hours to “‘develop the puzzle of the person’s life.’”20 And because of Miller’s roots in case law dealing with the death penalty, these lawyers may, in fact, find themselves ethically required to enlist the services of such experts. In any event, the introduction of the mitigation specialist’s perspective is likely to be helpful in post-Miller representation of children facing life-without-parole sentences.

Using Methods of Forensic Social Work to Win Cases

While not all jurisdictions have embraced the idea that attorneys representing clients in mitigation hearings are ethically required to employ specialists to aid in the development of narratives that compel less severe sentences, it is still advisable that attorneys do so to the extent possible. This is true whether it is in the context of the death penalty or juvenile life without parole. The training of forensic social workers and mitigation specialists brings a focus on the “person in his environment” and permits the examination of the defendant’s entire social context as a system of actors and interests.21 This world view does not necessarily conflict with and can be complementary to the attorney’s focus on identifying and making sense of mitigating and aggravating factors.

The forensic social worker or mitigation specialist can also bring this perspective to the task of building the necessary collaborative relationships with the client’s family and loved ones. With the understanding that families are complex systems, they are more likely to be attuned to the nuances of family dynamics. And a social worker’s ethical obligation to act in the best interest of each individual has the potential to counterbalance the attorney’s ethical requirement to put the client’s interests above all others, which can lead to improved communication and collaboration between the family and the defense team.22 Finally, because of their training, forensic social workers expect to spend hundreds of hours interviewing people in each case. In addition to being necessary to the construction of a mitigating narrative, this expectation can empower family members who might otherwise feel slighted by a defense attorney’s required commitment to the client to the exclusion of all others.

While courts have yet to universally recognize that defense teams engaged in mitigation are ethically required to hire forensic social workers, it is certainly a possibility that an ethical norm will arise that recognizes that such experts bring perspectives and training that are necessary for constructing mitigation narratives. Similarly, the question of whether states are obligated to fund mitigation specialists has yet to be conclusively decided. However, given the advantages that a forensic social worker can bring to a defense team, both in terms of obtaining relevant evidence and creating collaborative relationships with family members, every effort should be made to obtain these services.

If, however, resources cannot be obtained to retain a forensic social worker, defense attorneys may mimic the strategies of those professionals by coupling their primary loyalty to the client with a rooted understanding of the emotional and intellectual needs of new collaborators — the families. At a minimum, Miller requires that defense attorneys be afforded new opportunities to argue that a lesser sentence is warranted in a particular case and to present evidence in support of that argument. To take advantage of this opportunity, defense attorneys should do whatever is possible, including employing mitigation specialists and forensic social workers when possible, to create a collaborative environment in which family members and attorneys recognize their shared interest in preventing the court from imposing a sentence of life without parole.

  1. Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 2468 (2012).
  2. __ U.S. __, 130 S. Ct. 2011, 2027 (2010).
  3. Miller, 132 S. Ct. at 2466.
  4. 510 U.S. 1009 (1993).
  5. 536 U.S. 304 (2003).
  6. 543 U.S. 551 (2005).
  7. 428 U.S. 280 (1976).
  8. 509 U.S. 350 (1993).
  9. 455 U.S. 104 (1982).
  10. Supra note 4.
  11. 539 U.S. 510 (2003).
  12. 545 U.S. 374 (2009).
  13. Miller, 132 S. Ct. at 2468.
  14. See Phyllis L. Crocker, Childhood Abuse and Adult Murder: Implications for the Death Penalty, 77 N.C. L. Rev. 1143 (1999).
  15. Williams v. Taylor, 529 U.S. 362, 395 (2000). “[Counsel] failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood.”
  16. Elizabeth Beck, Brenda Sims Blackwell, Pamela Blume Leonard & Michael Mears, Symposium: Victims and the Death Penalty: Inside and Outside the Courtroom: Seeking Sanctuary: Interviews With Family Members of Capital Defendants, 88 Cornell L. Rev. 382, 413 (2003).
  17. Id.  
  18. See National Juvenile Defender Center, National Juvenile Defense Standards, Standard 2.5: Families and Other Interested Parties (2012).
  19. Emily Hughes, Mitigating Death, 18 Cornell J. L. & Pub. Pol’y 337, 359 (2009).
  20. Emily Hughes, Arbitrary Death: An Empirical Study of Mitigation, 89 Wash. U. L. Rev. 581, 632 (2012).
  21. Supra note 8, at 358.
  22. Id. at 359.
About the Author

John Hardenbergh is the litigation specialist at the Campaign for the Fair Sentencing of Youth. Prior to joining CFSY,  he worked as a staff attorney at the Mid-Atlantic Innocence Project.

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