Mitigating circumstances in death penalty decisions: using evidence-based research to inform social work practice in capital trials.

Schroeder, Julie ; Guin, Cecile C. ; Pogue, Rene 等

Social workers are increasingly assuming the role of mitigation specialist and becoming central figures in multidisciplinary capital defense teams (Guin, Noble, & Merrill, 2003; Schroeder, 2003; Stetler, 1999). Those who advocate for social workers' entry into this emerging field argue that the profession is rooted in and distinguished by traditions of advocating for the powerless and working for social justice (Roberts & Brownell, 1999). Advanced clinical skills (Alfonso & Baur, 1986; Andrews, 1991; McCoy, 1999) as well as training in systems and ecological theoretical approaches (Schroeder) appear to be very useful in uncovering and interpreting the biopsychosocial realities of individuals charged with capital offenses. In fact, the gold standard for mitigation practice is reliance on focused investigation and presentation of evidence about a defendant's life and character that is sufficient to compel jurors to consider a complexity of personal, social, and ecological issues in deciding attribution of responsibility that mitigate defendants' legal accountability in capital offenses. This article presents a conceptual framework of problems that surround mitigation practice and argues that better practices can be crafted from a broader systemic approach that is grounded in empirical evidence and practice and goes beyond current parameters of mitigation practice.

EMERGENCE OF CONTEMPORARY MITIGATION PRACTICE STANDARDS

In the incidence of capital cases, the U. S. Supreme Court has recognized what research has long shown: Jurors often make sentencing decisions prematurely, and they often base their decisions on their personal reactions to the defendant, their confusion about the rules of law, and their lack of understanding regarding their own role and responsibilities (Bowers, Sandys, & Steiner, 1998; Sandys, 1995). In an effort to safeguard against jurors' "unguided emotional response[s]" when determining punishment for capital defendants, the Court set forth a legal standard that requires defense teams in capital cases to conduct thorough investigations into the defendants' backgrounds. If the defendant is found guilty, the information gleaned from that investigation must then be presented as mitigating evidence during the penalty phase of the trial (Furman v. Georgia, 1972). The Court's monumental decision has led attorneys to seek the aid of social workers to conduct extensive social history investigations on clients who are defendants in capital cases. As noted by Schroeder (2003):

 The capital mitigation process comes to life
 when a social worker, using a life history model
 of investigation, assumes the role of mitigation
 specialist, who, by capitalizing on social work
 theory and research, practice knowledge and
 skills yields vital information that, through objective
 presentation of fact, guides sentencing
 decisions. (p. 424)

The life history model relies on traditional practice methods including case history development, multidimensional assessment, record review, mediation, and multidisciplinary teamwork. This extensive case investigation yields rich historical data that are then considered in light of factors empirically linked with criminal behavior. This method provides the legal team with a consistent defense theme that is infused throughout both the evidence and penalty phases of the trial. A mitigation outcome is considered ineffective when the jurors fail to comply with the rules and the roles that are imposed on them as jurors, for example, in making premature decisions.

CHALLENGING TRADITIONS

The established mitigation strategy that relies on social histories and life-stories survives and thrives as a legal mandate and preferred approach in capital cases despite of a lack of empirical research that demonstrates it is an effective strategy. In fact, available empirical legal research suggests the contrary: Jurors often disregard or misunderstand mitigating circumstances when making sentencing decisions (Diamond 8,: Levi, 1996; Eisenberg, Garvey, & Wells, 1996, 1998; Garvey, Johnson, & Marcus, 2000; Luginbuhl & Howe, 1995; McDougall v. Dixon, 1990). The evidence against the potency of presenting defendants on the witness stand to influence sentencing decisions is compelling and warns attorneys and social worker mitigation specialists that current legal and practice standards are perhaps too unreliable and ineffective to be considered the best possible practice. When practice and empirical evidence from a range of disciplines that hold stake in jurisprudence is considered, problems with currently preferred tactics are more visible, and a more complex set of practice methods and strategies is suggested. Furthermore, the literature suggests certain implications for research and practice, including how mitigation activities are conceptualized and conducted and the effectiveness of the social work mitigation specialist in presenting the information that has been developed.

PENALTY-PHASE JUROR DECISION MAKING

Professional literature demonstrates that many disciplines have an interest and a stake in the legal process and outcomes related to capital offenses. The existing body of knowledge, however, is at once complex and disjointed, but provides a conceptual framework of the problems that surround mitigation work and potential best practices to evolve effectiveness. From one perspective, cognitive psychologists seek to understand the role that strong emotions play in creating feelings often tied to pre-existing beliefs, which in turn lead to actions that help to dissipate those strong feelings (Werner, 1986). In addition, attribution theorists examine the manner in which people interpret and explain events (Fincham & Jaspars, 1980), leading to their assignment of responsibility and blame (Coates & Penrod, 1981). This provides a foundation for understanding how and why jurors decide to impose the ultimate punishment. These processes are elaborated by descriptive studies that identify how jurors' strong emotional reactions to capital defendants often result in a death verdict (Eisenberg et al., 1998, Steiner 1999; Sundby, 1998; Tomes, 1997). At times made prematurely, jury decisions appear to be based largely on personal values and emotional responses that rarely relate to the facts of the case and the potential mitigating influences on criminal behavior. Jurors often make decisions on the basis of their personal reactions to the defendant that are developed during the guilt phase of the trial (Garvey, 1998; Garvey, 2000). Furthermore, there appears to be misunderstanding of the statutory obligations that specifically dictate juror roles and responsibilities.

Juror Emotion

Jurors have reported a full range of emotional responses, from fear, anger, and disgust to sympathy and positive regard (Eisenberg et al., 1998; Garvey, 2000; Slobogin, 2003; Sundby, 1998; Tomes, 1997). Such a complicated mixture of emotions combined with the often-incomprehensible language of capital punishment statutes often results in a recipe for errors in judgment on life and death decisions (Eisenberg et al., 1998; Steiner, 1999). In attempting to understand the interaction of personal values and emotions with decision making, the field of cognitive psychology offers a possible explanation for the complex activities that may take place in the mind of the juror. Taken together, these findings advise social work practitioners who act as mitigation specialists to consider the role personal values and emotional reactions play in jury decision making as well as the effect juror ignorance of process may produce.

The literature demonstrates that other factors complicate jury decision making. For example, Luginbuhl and Howe (1995) found that jurors expressed fear about making a decision in a capital case because they were confused about the statues regarding sentencing options. Jurors' fear about a defendant's future dangerousness mixed with erroneous beliefs concerning sentencing limits was found to lead to an erroneous belief that capital defendants may serve a sentence of less than 20 years and may be afforded parole opportunities. Similarly, Eisenberg and colleagues (2001) and Sandys (1995) found that fear about parole was cited as an important rationale behind some jurors' vote for death. As a whole, these findings suggest that part of mitigation process and practice should involve clarifying, in practical terms, the actual consequences of sentencing options and other complex legal considerations surrounding death penalty decisions.

Juror Perception

Defendant behavior while in custody (Sundby, 1998) and demeanor during the trial (Eisenberg et al., 1998; Tomes, 1997) have been demonstrated as additional complicating features of the problems that surround death penalty decisions and that often give rise to anger among jurors. In fact, these two factors were shown to receive jurors' greatest consideration during deliberations. Jurors were also often angered when a defendant appeared bored or uninterested in the trial proceedings, and their anger often translated into a belief that the defendant lacked remorse. These perceptions that defendants lack remorse invoked anger, often mixed with disgust, regarding aggravating circumstances and were associated with death verdicts, regardless of the mitigating evidence produced during the penalty phase (Eisenberg et al., 1998). A remorseful defendant, who appears to take responsibility for his or her actions, evokes juror sympathy and support (Tomes). Remorse appears to work in the defendant's favor in two ways. First, jurors view defendants' apparent remorse as being the correct moral reaction to the crime. Second, perceived remorse on the part of a defendant is viewed as evidence that the defendant will not be dangerous in the future (Eisenberg et al., 1998). Sundby hypothesized that some jurors determine remorse by the manner in which the case is presented to them, rather than the actual remorse shown by the defendant in the courtroom. Nonetheless, remorse is a significant issue to consider when communicating mitigating influences to a jury. Taken together, evidence from these studies cautions those who act as mitigation specialists to help defense teams find ways to frame evidence and highlight reported and observable behavior in ways that suggest and underscore a defendant's remorse.

Statutory Disregard or Confusion

Luginbuhl and Howe (1995),Tiersma (1995), Ritter (2004), and Wiener and colleagues (2004) argued that jurors do not understand mitigation because the instructions they receive are presented in legal language that is difficult for laypeople to understand. When jurors cannot rely on the guiding legal principles, they often fall back on prior or folk knowledge as a basis for decision making (Steiner, 1999; Wiener et al.).

Furthermore, capital jurors report frequent confusion over the issues of aggravating and mitigating circumstances and the level of agreement needed for each. Such confusion often results in a death verdict (Eisenberg & Wells, 1993; Wiener et al., 2004). When Garvey (1998) queried jurors about what, according to statute, and in their minds, constituted aggravating factors, respondents reported that especially brutal murders, child victims, future dangerousness, and lack of remorse were the most salient aggravating circumstances. The defendant's prior criminal record and history of alcohol or drug abuse were lesser, yet pertinent, aggravating circumstances.

The legally required level of agreement about aggravating circumstances has been found to be especially confusing to jurors when weighing them in the punishment phase of a trial. Legal scholars have found that jurors incorrectly believed aggravating factors did not have to be proven beyond a reasonable doubt (Eisenberg & Wells, 1993), and they mistakenly believed anything could be considered aggravating, even evidence not put forth in the state's argument (Luginbuhl & Howe, 1995). Furthermore, many jurors believed that the death penalty was absolutely required when crimes were considered heinous (Eisenberg et al., 1996; Garvey, 2000; Garvey et al., 2000; Sandys, 1995).

Jurors' confusion about aggravating circumstances is also evident in research on the effect of mitigating evidence. Jurors stress the importance of certain mitigating factors considered during deliberations, including residual doubt about the defendant's guilt, mental retardation, and youthfulness of the defendant at the time of the crime, circumstances out of the defendant's control, and circumstances that diminish the defendant's responsibility for the crime (for example, multiple defendants). Factors receiving less consideration, yet still considered to be mitigating, include victims with criminal histories and defendants with histories of mental illness, child abuse, poverty, and time spent in state institutions (Garvey, 1998). Many jurors incorrectly believe mitigating factors must rise to the reasonable doubt burden of proof when in fact mitigating factors need only outweigh the state's presented aggravating circumstances (Luginbuhl & Howe, 1995). Jurors also mistakenly assume mitigating circumstances require the jury's unanimous vote when in fact, only one juror need consider a life circumstance to be mitigating (Garvey, 2000; Luginbuhl & Howe).

In theory, legal process in capital cases is expected to proceed in a stepwise fashion. In practice, jurors appear to "multitask" in ways that undermine the intent of prescribed process and significantly influence juror decision making. For example, the law requires jurors to withhold consideration of punishment during the guilt phase and make this decision after aggravating and mitigating circumstances are presented during the penalty phase of the trial (Furman v. Georgia, 1972). Yet, nearly one-half of jurors in one study (Bowers et al., 1998), and 70 percent of jurors in another (Sandys, 1995) indicated they had decided on punishment during the guilt phase of the trial before aggravating and mitigating circumstances were presented. Of those jurors who decided the punishment during the guilt portion of the trial, more than half of them maintained that decision throughout the trial. Jurors who reported reaching early decisions about punishment did so because of their predisposition about crime, punishment, the death penalty, and experiences during the guilt phase. Surprisingly, on hearing the state's evidence, a significant number of jurors decided that the death penalty was not only acceptable punishment for first-degree murder, but also for other types of murder as well. These findings advise mitigation practices that ensure jurors' thorough understanding of the legal issues that surround individual cases and options of legal response and, as important, trial strategies that remind jurors over and over again of their specific responsibilities associated with each step of the judicial process.

Abdication of Responsibility

Jurors who do not understand what is legally expected of them in capital trials are more likely to abdicate the responsibility for their decisions to others. When jurors fail to maintain a sense of responsibility for deciding verdicts and sentences, they are also less likely to critically consider the influence of mitigating circumstances on criminal behavior. Jurors tend to abdicate independent responsibility in a number of ways. For example, it is the sole responsibility of each juror to independently vote for life, life without parole, or death. Empirical evidence suggests however, that some capital jurors who vote for the death penalty are likely to rationalize a death vote by abdicating responsibility for that decision to the trial judge, the community, other jurors, the law, and the defendant (Eisenberg et al., 1996; Hoffman, 1995; Sherman, 1995).

Abdicating independent responsibility to the judge occurs more frequently among premature decision makers (Eisenberg et al., 1996), who believe that their verdict is merely a recommendation (Hoffman, 1995; Sherman, 1995). Sherman also argued that when jurors consider the judge as the final decision maker, they feel less responsibility for the verdict. Moreover, jurors who believe that they are merely representatives of the greater community feel less responsible for their decisions about punishment. Yet, they may paradoxically see themselves as only one vote and look to the voting behavior of their fellow jurors as a means of relinquishing personal responsibility.

There are a number of other risky situations when jurors abdicate their independent responsibility in decision making that should concern practitioners and legal advocates. One risk is that jurors may rely on the legal system to avoid taking personal responsibility for their decision. For example, jurors who falsely believe that the law requires a verdict of death for certain types of murder (Eisenberg et al., 1996; Sherman, 1995) frequently feel that the responsibility for a death sentence belongs to the legal system. In addition, beliefs about how the judicial system's appeal process operates have also been found to influence jurors' the level of personal responsibility. The appeals process is touted as a lengthy, time-consuming procedure, and jurors who do not think executions are actually carried out on a regular basis are less likely to accept responsibility for the verdict. Finally, research indicates that two critical factors appear to be associated with the ease with which a juror abdicates responsibility for his or her decision. These are when the juror views the crime as being especially brutal or premeditated (Sherman). Because crimes that lead to capital charges often dehumanize defendants proportionately to the crimes against their victims, it is especially important that social workers serving as mitigation specialists present evidence with some finesse that humanizes defendants and clearly informs jurors about the scope of consequences that will arise from their decision.

In summary, it is clear that life and death verdicts are made for a variety of reasons unrelated to the actual facts of the case, the legal responsibilities of the jury, and the weight of the mitigating evidence that is presented. The literature clearly delineates the problem areas that can guide the interventions by social work practitioners involved in mitigation work and suggests important areas for forensic social work education and training.

A MODEL TO INFORM PRACTICE

When practice and empirical evidence is considered, the problems that surround juror decision making and mitigation practice are more complex than implied by the legal remedy (Furman v. Georgia, 1972) that requires evidentiary presentation of a thorough investigation of a defendant's background. Based on issues identified in a broad body of literature, the conceptual problem model shown in Figure 1 demonstrates the complicating feature of the problems that surround death penalty decisions. During preparation for trial, social workers must remain cognizant of how jurors' personal values and emotions will likely affect their decision making.

[FIGURE 1 OMITTED]

Research and Practice Implications

The model delineates the areas that social work mitigation specialists are advised to consider when devising ways in which to improve practice outcomes in capital trials. It is clear that practice and empirical evidence on juror decision making suggests certain practical implications for social work mitigation specialists and legal professionals, allowing us to expand on traditional methods of inquiry and investigation and develop ways to use social work skills and advanced professional competencies to counter the effects of juror emotion, confusion, and abdication of roles and responsibilities. By broadening the focus of intervention beyond a psychosocial investigation of mitigating factors in a defendant's background, social workers create possibilities for intervening at multiple points in the legal system and process. A more systems-oriented approach requires social workers who act as mitigation specialists to take a more proactive role in the entire defense process. Going beyond the interpersonal work required to develop mitigating evidence to using education and advocacy strategies that provide richer, more fruitful consultancy to attorneys and the courts. A multidimensional, systems-oriented approach should help social work mitigation specialists apply the practice and empirical evidence discussed earlier to carve out a larger role in capital cases and improve both the mitigation investigation and work as part of a defense team. Proactive intervention at multiple points in the system and in the legal process promises better prospects for creating a link among the client, the defense team, and the jury. In the end, a larger role that applies practice and empirical evidence to social work and legal processes can help protect against the possibility that the evidence-based factors identified in our model will prevent jurors from concentrating on the mitigating circumstances detailed in the defendant's life story.

Intervening in the System

Intervening with Defense Attorneys. To ensure that defense strategies that neutralize factors negatively influencing juror decision making, we advise social workers to use relationship-building strategies that encourage a larger advisory role. Educating attorneys about the full range of social work skills and qualifications facilitates a more maximal social work role in the defense process. Informing attorneys about the risks outlined in professional literature and depicted in our model helps them plan trial strategies that may offset undesired decision-making factors and processes. Likewise, helping defense attorneys to develop improved relationship-building and interviewing skills not only enhances their ability to connect with potential jurors during voir dire (jury selection), but also results in thoughtful answers during voir dire on potentially life-threatening issues. This personal connection, and the resultant information gleaned from potential jurors, could assist the defense team in selecting individuals who will remain cognizant of the impact that their emotions have on their ability to make decisions. Jurors relate to the best communicator, and social workers can assist attorneys in learning how to communicate to the laypeople who will eventually become jurors (Caldwell, Perrin, & Frost, 2002).

Intervening with the Team. Through relationship building and education strategies, social workers can increase their role as a vital link between the defendant and members of the defense team (Schroeder, 2003). Using basic and advanced interpersonal skills, social workers acting as mitigation specialists can expand their role by facilitating communication and collaboration and helping counsel recognize the effects of the existing power differential among themselves, the defendant, and jurors (Alfonso & Baur, 1986). Affecting inherent power differentials, social workers must model advocacy skills to help attorneys identify with and advocate for jurors in need of clarification as well as assist in creating an atmosphere that promotes supportive development of relationships. It is vital that judges provide clear instructions, and if they do not, jurors must be empowered to keep asking questions until they fully understand their obligations under the law. Attorneys must also advocate for the defendant, and this commitment must be clear to the defendant so he or she will cooperate with the attorney and the mitigation specialists during the trial. Finally, social workers must model advocacy skills to help attorneys identify with and advocate for changes in the legal system that must be made to deal with problems such as juror confusion and misunderstanding. The practitioner's role as advocate should extend to state legislatures where court procedures regarding jury instructions, jury questioning of the judge and witnesses, and .juror note taking must be addressed by statute.

Intervening with the Jury

Selecting the Jury. Like their highly trained forensic psychologist counterparts who have been working with attorneys to select juries for many years (Cutler, 1990; Fischoff, 2003; Vore, 1989), social workers who--as a group--have been long employed to complete legally mandated defendant background investigations are increasingly being used by public defenders. Consequently, a growing number of social workers will undoubtedly find themselves in the position of assisting defense attorneys in jury selection. Social workers can most effectively intervene in this point of the legal system by applying best practices in assessment and in questionnaire development to the jury selection process to identify and screen out jury candidates who will be most likely to demonstrate potential for severe or erroneous decision making identified in the literature and our proposed model. For example, a large body of research suggests that early decision makers are more likely to vote for death, largely because they have not considered mitigating factors. So, it is vitally important to identify people with these tendencies during voir dire.

Using best research practices, survey questions should be structured in ways to identify jurors who have authority and compliance issues. These qualities can be determined by asking questions about issues not related specifically to the law but regarding biopsychosocial factors that jurors might respond to more readily and comfortably, such as medication compliance, paying taxes, and dealing with coworkers or neighborhood associations. To be sure, many potential jurors with compliance issues will be deemed appropriate (death qualified) for service. Therefore, it is vital for the defense team to identify the most "dangerous" of that group using peremptory challenges to exclude them from service. Being close to the jury selection process also helps mitigation specialists when developing the penalty phase testimony of experts, family, and friends. Knowing the jurors' attitudes, values, and personal life experiences provides details that can be used to personalize the penalty phase testimony.

Educating the Jury. Social work mitigation practitioners should develop educational interventions for the defense team to use to improve juror understanding of confusing issues, such as aggravating and mitigating circumstances. Clear language and rephrasing techniques should be used to guarantee that each, juror has a clear understanding of and can explain, in his or her own words, what constitutes mitigating and aggravating circumstances.

Life history timeline diagrams, models of pathways into criminal behavior, and photographs are commonly used to help jurors come to know the defendant during the penalty phase (Guin & Merrill, 2000). Ogloff's ("Jurors Can't Understand," 1998) preliminary use of decision trees to help jurors understand substantive instructions in making their decisions offers promise and could prove useful in assisting jurors in using mitigating evidence in their decision making in capital trials. Visual reinforcement of the rules and their application helps jurors use all of the information presented to them in an objective manner and promotes the integration of mitigating evidence into their overall deliberations. Decision trees can provide structure and organization to illustrate, explain, and simplify the penalty phase evidence and issues guiding jurors' decisions with clarity that words alone cannot accomplish.

Furthermore, by sharing with the defense team knowledge of human behavior, social workers can help the team predict and develop trial strategies that are likely to minimize or neutralize jurors' responses to complicated and often gruesome information about violent criminality and victimization. In addition, practitioners must also recommend competent experts who can discuss troublesome issues that often result in confusion and misunderstanding. For example, identification and recruitment of a correctional expert to testify about the realities of sentencing (life without the benefit of parole) and prison security issues during the penalty phase of the trial should alleviate juror confusion, frustration, and the desire "to know what the punishment would actually be if they did not impose a death sentence" (Bowers & Steiner, 1999, p. 605).

Intervening with Defendant Clients. Work with the defendant must include efforts to address negative pretrial demeanor and trial behavior that negatively affect juror's decisions. Remorse and responsibility are exceptionally difficult issues for many defendants to demonstrate, particularly defendants who suffer from mental illness or retardation and those who maintain their innocence. Helping clients understand the effects of their verbal and nonverbal communication styles and the defendant's active involvement in improving on those elements may increase the likelihood that he or she might build a more positive relationship with jurors. Bem's (1978) pioneering research purported that an individual's body language reveals more than two-thirds of the emotional meaning of a message. It is vitally important that social workers help defendants understand what their nonverbal behavior communicates to jurors and that those jurors may ascribe meaning to each and every gesture or expression both intentional and unintentional.

Often defendants admit to having some involvement in the crime for which they are being tried. It is important that the client admit being present or partially responsible for the outcome of the incident, if this is consistent with the legal strategy. Clients must understand the gravity of their behavior and the feelings of loss that the victim's loved ones are experiencing. In this way, jurors can see that although the client maintains that he or she did not kill the victim, he or she admits to playing some role in the victim's demise. Honest and sincere client reaction to the aggravating circumstances must reflect feelings of sadness, regret, remorse, and responsibility.

Attorneys often have difficulty working with clients to develop these feelings so they can be appropriately displayed on the witness stand; thus, the issue must be dealt with very early in the investigation and relationship-building process. Investigating the client's feelings regarding the crime may help elicit genuine responses that can be developed through journaling, artwork, and flank discussion later taken into the courtroom to mitigate the effects of the aggravating circumstances.

The defendants themselves often do not understand how they can participate in their own defense. Social workers who have developed a solid relationship with their client can assist him or her in understanding what he or she can do to affect the sentencing outcome. Some will have little problem with this; however, many capital defendants are poorly educated, have borderline intelligence, or are mentally retarded or mentally ill. They will not make a positive impression in the courtroom without a great deal of education on the courtroom setting and roles and responsibilities of various court personnel, followed by practice or role playing. Role playing is especially helpful for the undereducated or disabled client to assist him or her in speaking clearly with proper tone and rate. Public speaking skills will also enhance the defendant's acceptability during pretrial status hearings if the judge speaks directly to the defendant. Proper grammar and syntax will give the client confidence and work to humanize him or her.

Later, during voir dire, if the defendant has the opportunity to speak before the jury selection pool, proper elocution gives potential jurors the opportunity to develop a larger construct of who this individual is. A person without a voice remains a mystery. A person charged with a heinous killing who is not allowed a voice becomes a silent beast to jurors as the evidence is put forth during the trial. Judgments are often made about people based on their physical appearance and verbal communication skills. The social worker is well equipped to assist difficult clients in presenting themselves in a manner that could be helpful to their defense.

CONCLUSION

Because of the advocacy and social justice traditions of the profession as well as their specialized education, training, and experience, social workers are particularly well suited to work as part of a defense team in capital cases. Increasingly, social workers are becoming widely accepted and employed to complete legally mandated investigations, convey relevant information to officers of the court, and provide evidentiary presentations of death penalty defendants' background to juries. In this respect, social workers have gained entry into an area of practice that can be significantly improved by expanding their role to include interventions at multiple points in the legal system and process.

However, most social workers are added to defense teams composed of public defenders representing indigent clients. Consequently, there is a risk that social workers' role will be restricted because of misconceptions about the full range of their potential as defense team members. In contrast to higher paid psychologist--often in private practice--who act as trial and jury selection specialists, social workers may suffer the social bias and prejudice about competency and range of skill that comes from being viewed as public servants. We advise social workers to use their professional skills to gain the standing--enjoyed by too few in our profession--that is necessary to engage fully in mitigation practice that applies a systems approach and evidence-based knowledge.

The empirical evidence discussed here clearly delineates how juror emotion, confusion and disregard, and abdication of responsibility can lead juries to overlook mitigation evidence in capital trials. We propose a greater role for social workers as mitigation specialists in death penalty cases by using a systems approach that is informed by practice and empirical evidence to intervene at multiple points in the legal system and process. To accomplish this aim, social workers must be cognizant of the factors that influence juror decision making and the skills required to intervene to ensure a just legal process. A critical requirement of best practice in this arena is that social workers remain up to date on current legal research on juror decision making in capital trials, use traditional social work methods most effectively, and develop new competencies to meet the needs of the defense team, the client, and society.

Armed with an intellectual understanding of the value of mitigating circumstances, the practitioner must build relationships with the client and the client's friends and family to dig deeply into the recesses of spoken and recorded history to discover stories that depict the client accurately throughout the court process. Strong relationships must be built among defense team members and everyone involved in the client's life. These relationships may place the client at greater ease, improving his or her demeanor with resultant interactions witnessed by jurors working to humanize the defendant. By developing the conceptual problem model depicting the causal factors underlying the ineffectiveness of mitigation evidence in capital trials, it is hoped that social workers serving as mitigation specialists begin to link traditional social work skills to these points of intervention. From the initial meeting with the client until the last appeal is denied in a capital case, social workers must use their skills to educate, advocate, and build important relationships to ensure that the critical human issues that propel a person into criminality are made very clear throughout each phase of the trial. This may include the use of pictures, graphics, compelling expert testimony, and life history information that demands the undivided attention of jurors so they will retain key facts and carefully consider the issues.

The problem conceptual model must eventually lead to a multilevel intervention framework that can be formalized and tested using multivariate analysis to determine the effectiveness of mitigation when the issues identified in this article are actively addressed. Effective interventions will create opportunities for classroom instruction, field placement, and interdisciplinary collaboration among social work and law students, as well as much needed postgraduate and continuing education for the social work mitigation specialists and attorneys who currently fight for just decisions in capital trials.

Original manuscript received September 9, 2002 Final revision received July 29, 2004 Accepted August 15, 2005

REFERENCES

Alfonso, C., & Baur, K. (1986). Enhancing capital defense: The role of the forensic clinical social worker. The Champion, 6, 6-29.

Andrews, A. B. (1991). Social work expert testimony regarding mitigation in capital sentencing proceedings. Social Work, 36, 440-445.

Bem, P. A. (1978). Social behavior: Fact and falsehoods about common sense, hypnotism, obedience, altruism, beauty, racism and sexism. Chicago: Nelson Hall.

Bowers, W. J., Sandys, M., & Steiner, B. D. (1998). Foreclosed impartiality in capital sentencing: Jurors' predispositions, guilt-trial experience and premature decision making. Cornell Lau, Review, 83, 1476-1541.

Bowers, W. J., & Steiner, B. D. (1999). Death by default: An empirical demonstration of false and forced choices in capital sentencing. Texas Law Review, 77, 605-717.

Caldwell, H. M., Perrin, L. T., & Frost, C. L. (2002). The art and architecture of closing argument. Tulane Law Review, 76, 961-1072.

Coates, D., & Penrod, S. (1981). Social psychology and the emergence of disputes. Law and Society Review, 15, 665-659.

Cutler, B. L. (1990). Introduction: The status of scientific jury selection in psychology and law. Forensic Reports, 3,227-232.

Diamond, S. S., & Levi, J. N. (1996). Improving decisions on death by revising and testing jury instructions. Judicature, 79, 224-232.

Eisenberg, T., Garvey, S. P., & Wells, M. T. (1996). Jury responsibility in capital sentencing: An empirical study. Buffalo Law Review. Retrieved April 20, 2001, from, http://www.lawschool.cornell.edu/library/ death/cjp_publ.htm

Eisenberg, T., Garvey, S. P., & Wells, M. T. (1998). But was he sorry? The role of remorse in capital sentencing. Cornell Law Review. Retrieved April 20, 2001, from, http://www.lawschool.cornell.edu/library/death/ cjp_publ.htm

Eisenberg, T., Garvey, S. P., & Wells, M. T. (2001). Forecasting life, and death: Juror race, religion, and attitude toward the death penalty. Journal of Legal Studies. Retrieved January 28, 2002, from http:// www.lawschool.cornell.edu/library/death/ cjp_publ.htm

Eisenberg, T., & Wells, M. T. (1993). Deadly confusion: Juror instructions in capital cases. Cornell Law Review. Retrieved April 20, 2001, from http:// www.lawschool.cornell.edu/library/death/ cjp_publ.htm

Fincham, F. D., & Jaspars, J. M. (1980). Attribution of responsibility: From man the scientist to man as lawyer. Experimental Social Psychology, 13, 81-82.

Fischoff, S. (2003). Stack and sway: The new science of jury consulting. Political Psychology, 24, 628-631.

Furman v. Georgia, 408 U.S. 238 (1972).

Garvey, S. P. (1998). Aggravation and mitigation in capital cases: What do jurors think? Columbia Law Review. Retrieved April 20, 2001, from http://www. lawschool.cornell.edu/library/death/cjp_publ.htm

Garvey, S. P. (2000). The emotional economy of capital sentencing. New York University Law Review. Retrieved April 20, 2001, from http://www. lswschool.cornell.edu/library/death/cjp_publ.htm

Garvey, S. P., Johnson, S. L., & Marcus, P. (2000). Correcting deadly confusion: Responding to jury inquiries in capital cases. Cornell Law Review. Retrieved April 20, 2001, from http://www. lawschool.cornell.edu/library/death/cjp_publ.htm

Guin, C. C., & Merrill, T. S. (2000, May). Life or death? Using multi-disciplinary life history research in forensic social work. Paper presented at the meeting of the National Organization of Forensic Social Workers, Palm Springs, CA.

Guin, C. C., Noble, D., & Merrill, T. S. (2003). From misery to mission: Forensic social workers on multidisciplinary mitigation teams. Social Work, 48, 362-373.

Hoffman, J. L. (1995). Where's the buck? Juror misperception of sentencing responsibility in death penalty cases. Indiana Law Journal. Retrieved April 20, 200l, from http://www.lswschool.cornell.edu/ library/death/cjp/publ.htm

Jurors can't understand instructions, study finds. (1998, November, 19). Simon Fraser News, 13(6). Retrieved November 20, 2002, from http://www.sfu.ca/ mediapr/sfnews/1998/Nov 19/oglogg.html

Luginbuhl, J., & Howe, J. (1995). Discretion in capital sentencing instructions: Guided or misguided? Indiana Law Journal. Retrieved April 20, 2001, from http://www.lawschool.cornell.edu/library/death/ cjp_publ.htm

McCoy, D. (1999). Mitigation strategies in death penalty cases. The Advocate, 21 (1). Retrieved April 20, 2001, from http:/dpa.state.ky.us/library/advocate/jan99/ mitigation, html

McDougall v. Dixon, 921 F.2nd 518, 539 (4th Cir.) (1990).

Ritter, J. L. (2004). Your lips are moving ... but the words aren't clear: Dissecting the presumption that jurors understand instructions. Missouri Law Review, 96, 163.

Roberts, A. R., & Brownell, P. (1999). A century of forensic social work: Bridging the past to the present. Social Work, 44, 359-369.

Sandys, M. (1995). Cross-over-capital jurors who change their minds about the punishment: A litmus test for sentencing guidelines. Indiana Law Journal. Retrieved April 20, 2001, from http://www.lawschool. cornell.edu/library/death/cjp_publ.htm

Schroeder, J. (2003). Social work's role in death penalty mitigation investigations: Forging a new practice area. Families in Society, 84, 423-432.

Sherman, S. J. (1995). The role of responsibility and how psychology can inform the law. Symposium: The Capital Jury Project. Indiana University Law Journal, 70, 1241. Retrieved April 20, 2001, from http:// www.lawschool.cornell.edu/library/death/ cjp_publ.htm

Slobogin, C. (2003). What Atkins could mean for people with mental illness. New Mexico Law Review, 33, 293-314.

Steiner, B. D. (1999). Folk knowledge as legal action: Death penalty judgments and the tenet of early release in a culture of mistrust and punitiveness. Law and Society Review. Retrieved April 20, 2001, from http://www.lawschool.cornell.edu/library/death/ cjp_publ.htm

Stetler, R. (1999). Why capital cases require mitigation specialists. The Champion, 1, 35-40.

Sundby, E. (1998). The capital jury and absolution: The intersection of trial strategy, remorse and the death penalty. Cornell Law Review. Retrieved April 20, 2001, from http://www.lawschool.cornell.edu/ library/death/cjp_publ.htm

Tiersma, P. M. (1995). Dictionaries and death: Do capital jurors understand mitigation? Utah Law Review. Retrieved April 20, 2001, from http://www. lawschool.utah.edu/library/death/cjp_publ.htm

Tomes, J. P. (1997). Damned if you do, damned if you don't: The use of mitigation experts in death penalty litigation. American Journal of Criminal Law, 24, 359-398.

Vore, D.A. (1989). Psychological consultation for systematic jury selection. American Journal of Forensic Psychology, 7(4), 21-36.

Werner, H. D. (1986). Cognitive theory. In F.J. Turner (Ed.), Social work treatment (3rd ed., pp. 91-130). New York: Free Press.

Wiener, R. L., Rogers, M., Winter, R., Hurt, L., Hackney, A., Kadela, K., Seib, H., Rauch, S., Warren, L., & Morasco, B. (2004). Guided jury discretion in capital murder cases: The role of declarative and procedural knowledge. Psychology, Public Policy, and Law, 10, 516-576.

Julie Schroeder, PhD, is associate professor, Department of Criminal Justice, Fayetteville State University, 2500 Murchison Road, Fayetteville, NC 28301; e-mail: [email protected]. Cecile C. Guin, PhD, is associate professor, School of Social Work, Louisiana State University. Rene Pogue, PhD, is a visiting professor, Texas State University at San Marcos. Danna Bordelon, MSW, is research assistant, School of Social Work, Louisiana State University.