Forging a new practice area: Social work's role in death penalty mitigation investigations

Schroeder, Julie

Abstract

The death penalty remains alive and well in the United States. Courts in 37 states try defendants who are oftentimes mentally retarded, mentally ill, or suffer from neurological disorders. Social workers are using their skills and expertise to lead mitigation investigations where disability, discrimination, and deprivation in defendant's lives are being woven into the fabric of the penalty phase process. Mitigation investigations yield information about a defendant's life that is then empirically linked with factors identified in the social science literature and presented to juries to guide their focus in making sentencing decisions. Advanced clinical skills and an ecological theoretical approach to interpreting the biopsychosocial realities of the defendant's life are proving to be vital components of capital litigation.

THE DEATH PENALTY REMAINS ALIVE AND WELL in the United States. Courts in 37 states continue to try defendants who are oftentimes mentally retarded, mentally ill, or suffer from neurological disorders. With their long history of advocating for the powerless, social workers are using their skirls and expertise to lead mitigation investigations where disability, discrimination, and deprivation in defendant's lives are being woven into the fabric of the penalty phase process. Well-conducted mitigation investigations yield information about a defendant's life that is then empirically linked with factors identified in the social science literature and presented to juries to guide their focus in making sentencing decisions. Using their management and communication skills, social workers are particularly well suited to play a central role in die functioning of the multidisciplinary defense team. Moreover, advanced clinical skills and an ecological theoretical approach to interpreting the biopsychosocial realities of the defendant's life are proving to be vital components of capital litigation.

The majority of Americans support capital punishment, and the size of death row continues to grow (Death Penalty Information Center, 2001). Consequently, social workers are becoming increasingly visible in mitigation investigations during both the pretrial and postconviction phases of capital cases. The mitigation investigation, a relatively new practice area, is pivotal in determining whether a defendant is sent to death row. There is little information, however, that exclusively focuses on the knowledge and skills that social workers bring to capital mitigation teams. In feet, a review of the social work literature yielded only two articles about this emerging area of practice (Andrews, 1991; Reed & Roher, 2000). Social workers, attorneys, and investigators publishing in the legal literature have argued that social workers are the most appropriate professionals to assume a leadership role in well-conducted mitigation investigations (Alfonso & Baur, 1986).

Social work celebrates a long history of theoretical and practical application of system-focused models, multidisciplinary collaboration, multidimensional assessment, and relationship building, all of which are vital to the mitigation investigation in capital cases. This article, therefore, contains an examination of this emerging area of social work practice by defining mitigation and describing how social workers use life history research to link client data with specific domains empirically associated with the development of criminal behavior. Additionally, myriad social work roles and the skills used throughout the life of capital cases are identified and placed into a clinical practice perspective. This article concludes with a discussion of potential moral and ethical obstacles and social work education's role in preparing graduates interested in working with capital clients. For over 100 years, the profession has progressively expanded its role in the courts (Roberts & Brownell, 1999). And now, at the beginning of the 21st century, social workers are forging professional legal relationships with attorneys litigating capital cases where the death penalty is a sentencing option, and they are participating in both the guilt and penalty phases.

The Mitigation Process

Mitigation is best understood after first being defined and put into a historical perspective. The 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 jury sentencing decisions.

Definition of Mitigation

To mitigate is "to make or become less severe, to moderate" (The American Heritage Dictionary, 1991, p. 804). In a narrower legal sense, mitigation is a process whereby evidence is presented in an attempt to gain a moderate response from a jury. It is a means by which to safeguard against a jury's "unguided emotional response" through the presentation of evidence that is essential if the jury is to give "a reasoned moral response to the defendant's background, character, and crime" (Penry v. Lynaugh, 1989, p. 328). Mitigation is not is an attempt to "offer excuses and arouse compassion" (Stetler, 1999b, p. 36). The goal of capital mitigation is to provide the jury with information about a client's life circumstances so that they might consider the punishment of life in prison without the benefit of parole rather than the death penalty.

This "guided emotional" response proffered by mitigation is the result of attempts by the U.S. Supreme Court to reform capital punishment. Prior to Furman v. Georgia (1972) guilt and punishment were determined during a single trial. This often led to a rush to judgment with little opportunity for appeal. In 1972 the Supreme Court called for the bifurcation of capital trials into two distinct phases: a guilt phase and, if the defendant was found guilty, a separate penalty or sentencing phase. During the penalty phase, juries were then required to focus their attention on aggravating and mitigating circumstances present during the commission of the crime. Aggravating circumstances involve the jury's determination of a defendant's specific intent to kill or inflict great bodily harm while carrying out the crime. Mitigating circumstances are those factors that a jury must consider when determining a defendant's blame-worthiness. Aggravating circumstances require unanimous agreement on at least one aggravating factor, but juries have total latitude with no agreement required when considering the mitigating circumstances. The development of lists of aggravating and mitigating circumstances was left to the legislators in states supporting capital punishment.

The John Paul Penry (Penry v. Lynaugh, 1989) case is a good example of an instance where a jury was not privy to potentially mitigating information during the penalty phase process. Penry, a mentally retarded man, was convicted of the rape and murder of a Texas woman and sentenced to death. On appeal, his attorney argued that the jurors should have been required to consider his mental retardation as a mitigating factor in determining punishment. The Supreme Court agreed, concluding that the jury should have heard instruction as to the defendant's mental capacity during the penalty phase of the trial (Penry v. Lynaugh, 1989).

Mitigation as a Specialty

It was not until the mid 1980s that mitigation articles written by psychologists, social workers, and capital investigators began appearing in criminal defense newsletters. This small body of work directed at criminal defense attorneys focused on the development of mitigation themes and evidence derived via extensive case investigations yielding historical data that were empirically linked to criminal behavior (Alfonso & Baur, 1986; McCoy, 1999; Norton, 1992; Stetler, 1999a). Concurrently, a number of authors (e.g., Alfonso & Baur, 1986; Andrews, 1991; Ashford, Macht, & Mylym, 1987) urged social workers to provide advocacy and expert testimony in capital cases.

This growing body of knowledge, along with first-hand observations of mitigation specialists at work in courtrooms across the country, has resulted in increased numbers of criminal defense attorneys seeking the aid of social workers for capital mitigation development (McCoy, 1999; Stetler, 1999a). Funds are now available for mitigation experts, and judges who have denied the use of funds for this purpose have created grounds for posttrial appeals (McCoy, 1999). Additionally, appellate courts at both the federal and state level are granting postconviction relief to defendants whose attorneys provided them with ineffective counsel by failing to properly present mitigating evidence (e.g., Austin v. Belt, 1997; Carter v. Bell, 2000; Goad v. State, 1996; Lockettv. Anderson, 2000; People v. Thompkins, 2000; Sanford v. State, 2000).

What Constitutes Mitigating Circumstances?

There is a great deal of variability in what constitutes a mitigating circumstance because these decisions have been left to the discretion of individual states. Statutes oftentimes focus on both negative factors present at the time of the offense, such as extreme mental stress, and positive factors that include the lack of a criminal history or age at the time of the offense. For example, the Louisiana law (La. Code Crim. Proc., 2000) offers a broad range of mitigating factors including the following:

(a) The offender has no significant prior history of criminal activity, (b) The offense was committed while the offender was under the influence of extreme mental or emotional disturbance; (c) The offense was committed while the offender was under the influence or under the domination of another person; (d) The offense was committed under circumstances which the offender reasonably believe A to provide a moral justification or extenuation for his conduct; (e) At the time of the offense the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication; (f) The youth of the offender at the time of the offense; (g) The offender was a principal whose participation was relatively minor; (h) Any other relevant mitigating circumstance, (p. 694)

By contrast, the Texas statute requires juries to consider only two mitigation factors: culpability and future dangerousness (Tex. Code Crim. Proc., 2000). The majority of states using the death penalty, however, consider a wider range of circumstances, with the open-ended requirement of jury consideration of any other relevant mitigating circumstances (Hughes & Lazik, 2000). This broad statement is an especially valuable construct used to describe the nexus between a defendant's life circumstances and the offense. Chronic maltreatment during childhood, including physical, emotional, and sexual abuse and/or neglect (Crespi & Rigazio-DiGilio, 1996; Crocker, 1999; Farrington, 1989; Heide, 1997; Lewis et al., 1985; Mogilka, 1997; Shumaker & Prinz, 2000), as well as birth complications or other injury resulting in organic brain damage, are common mitigating factors that are linked with criminal behaviors among capital defendants (Blake, Pincus, & Buckner, 1995; Guin, Houchins, & Edwards, 2001; Lewis, Pincus, Feldman, Jackson, & Bard, 1986; Pincus, 2001; Pontius, 1993a). Parental abandonment, academic failure due to mental retardation or developmental disabilities (Blake et al., 1995; Farrington, 1989; Meyers & Scott, 1997; Pincus, 2001; Tiihonen, Eronen, & Hakola, 1993), poverty, and discrimination (Farrington, 1989; Heide, 1997; Kennedy, Kawachi, Prothrow-Stith, Lochner, & Gupta, 1998; Martinez, 1996; Mogilka, 1997; Meyers & Scott, 1997) are additional relevant factors. Capital defendants often report a history of drug and alcohol abuse (Heide, 1997; Labelle, Bradford, Bourget, & Jones, 1991; Mogilka, 1997; Parker, 1995), mental illness, or posttraumatic stress disorder as a result of either living in a violent home environment or serving in the military (Blake et al., 1995; Grant & Coons, 1983; Labelle et al., 1991; Meyers & Scott, 1997; Pontius, 1993b; Tiihonen et al., 1993). Positive mitigating factors in such disordered lives might include remorse, the capacity for rehabilitation in prison, a favorable employment history, efforts to seek treatment or therapy for mental health or substance abuse problems, and positive parenting efforts (Andrews, 1991; Guin et al., 2001; Norton, 1992; Schroeder, 2001; Steuer, 1999a, 1999b).

Capital defendants often come from families who have suffered from generations of environmental and cultural distress marked by economic deprivation, discrimination, domestic and neighborhood violence, substance and alcohol abuse, family criminality, academic failure, and family dysfunction (Crespi & Rigazio-DiGilio, 1996; Farrington, 1989; Holmes & DeBurger, 1998; Martinez, 1996; Meyers & Scott, 1997). As Haney (1995) aptly observed,

There is increased recognition that the roots of violent behavior extend beyond, the personality or character structure of those people who perform it, and connect historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which violence transpires, (p. 561)

The client's entire life must be carefully considered, and all of the information that has been gathered must be developed into a cogently delivered presentation of how the collision of events in the defendant's life resulted in murder.

The Role of the Mitigation Specialist

The mitigation specialist acts as a liaison between the attorney and the client, the client's family, and all other individuals from whom information is sought. Social workers are capable of assuming the role of mitigation specialist by relying on already well-established social work roles. Knowledge and expertise in case management, multidimensional assessment, casework, mediation, information dissemination through written reports, and direction of the penalty phase process are proving to be vital to the outcome of capital cases (Alfonso & Baur, 1986; Guin et al., 2001; Guin & Merrill, 2000; Hudson, Core, & Schorr, 1987). Below is a brief description of how these special skills are used in the development of a mitigation case during a pretrial capital murder investigation. Many of these activities are also applicable to postconviction review.

A Model of Investigation Capitalizing on Social Work Roles, Knowledge, and Skills

The Life History Approach

Because of the demanding nature of capital trials, both the defense attorney and the defendant require a great deal of assistance (Norton, 1992; Stetler, 1999b; Wheelan, 1996). Not only are the stakes extremely high, but the task of gathering needed information is overwhelming. McCoy (1999) also argued that in many cases the penalty phase is underdeveloped because of time constraints and personality differences among defendants, their families, and attorneys. The onerous search for documentation and the extensive interview process coupled with the difficulties associated with reluctant clients, the majority of whom are unable to fund their own defense, present potential roadblocks to case development.

The Multidisciplinary Team Approach

The team approach is perhaps the best method of utilizing resources to increase the possibility of a life sentence verdict (Hudson et al., 1987). Guin, Noble, and Merrill (2003) argued,

To [be able to] develop a true picture of the client, a team of persons knowledgeable in each of the areas pertinent to an individual client must be convened. It is critical to remember that jurors examine the legal issues to reach a [guilt] verdict, but they examine the individual in the sentencing [penalty] phase, (p. 368)

Social workers have the case management skills necessary to convene and focus such a team by serving as point persons through whom all information can flow and be distributed, and they can enhance resource management by maintaining schedules, correspondence, and communication routines. Additionally, the social worker maintains relationships with the agencies and institutions (e.g., schools, hospitals, courts, child protection agencies) that will provide the documentation for developing the life history (Guin & Merrill, 2000; Hepworth & Larsen, 1990).

Team members often include both guilt- and penaltyphase attorneys because the guilt-phase defense strategy must be consistent with the mitigation themes. Other team members include the mitigation specialist, crime and mitigation investigators, the client and the client's family, professionals with expertise needed to further explore and explain the client's physical and/or mental status (e.g., physicians, psychologists, and psychiatrists), and any volunteers or students willing to assist in the investigation.

Social workers should become a part of the defense team at the earliest possible point because mitigation investigations can take anywhere from 200 to 500 or more hours to complete (Norton, 1992). It takes a great deal of time to develop an accurate and comprehensive portrait of the defendant. Research has shown that in order to develop such a portrait, the mitigation specialist must gather information from clients and their family going back three generations (Norton, 1992). This longitudinal study of the client's life entails obtaining every available document that has ever been generated on the defendant (McCoy, 1999; Norton, 1992; Stetler, 1999a).

Multidimensional Assessment

The process begins with an extensive multidimensional assessment of the entire client system using an ecological approach to understand the client and the client's family, as well as his or her social networks in the context of institutional, community, and societal factors (Alfonso & Baur, 1986; Andrews, 1991). This process requires a great deal of time and effort. Whereas other criminal and mitigation investigators can assist in locating and screening individuals important to the case, it is the social worker who must undertake the professional assessment process. The interview process should begin with the client and then move to all other persons who can place the client's life into a historical context. Although the information being gathered from the client's social networks (e.g., parents, spouse or partner, children, siblings, grandparents, aunts, uncles, friends, former employers, former teachers, pastors) provides a rich historical context, it is also used to triangulate the data generated by the document search.

The ecological approach provides the framework by which the client's life can be understood in a larger context, thus building a foundation for developing the mitigation theme that will be used in court to help the jury understand how the client arrived at this particular place in life. Empirical evidence indicates that people who commit capital offenses often have long histories of abuse and neglect at the hands of family, and many have experienced environmental and cultural distress via institutions and the community (Cleary, 1985; Crocker, 1999; Heide, 1997; Keyes, Edwards, & Perske, 1997; Lewis et al., 1985, 1986; Pincus, 2001). Therefore, themes or defense strategies often revolve around deprivation and loss, stress and trauma, and coping strategies. The combination of the theme and the documentation confirming that theme must support the relationship between the defendant's life influences or unresolved issues and the commission of the offense (Andrews, 1991).

Most clients, particularly those of minority status, have little faith in the criminal justice system (Alfonso & Baur, 1986). Social workers can engage multiply challenged and resistant clients by crafting a task-centered approach where goals are developed, roles are discussed, a time frame is set, and a means of monitoring progress is put into place. This approach helps focus the investigation, engage the client, and develop an alliance, which produces a climate conducive to overcoming resistance (E. Hartman & Reynolds, 1987), often resulting in improved communication among the attorney, the client, and the family; their ability to work together is vital.

Clients can usually provide basic information about themselves and their family members. Prebirth circumstances, family history, significant relationships, and major life events are of particular relevance. The social worker focuses on the following factors: (a) maternal and parental deprivation and the absence of parental bonding and supervision; (b) any untreated dental, medical, or psychiatric needs; (c) the incidence of physical, sexual, and psychological abuse occurring in childhood and adolescence, as well as the degree of the abuse; (d) the early influence of adults engaged in immoral or illicit behavior; (e) academic failure; and (f) any social or emotional impairment that occurred in childhood, adolescence, or adulthood (Alfonso & Baur, 1986; Andrews, 1991; Stetler, 1999b).

Elements of culture often have a devastating influence on a client of minority status. These elements include the impact of assimilation and acculturation, limited resources, isolation, and discrimination. The processes of assimilation and acculturation can be highly stressful. Individuals navigating these life-changing events have been known to encounter discrimination that has led to anxiety, depression, and other psychological conditions (Alfonso, 1996). In combination with poor educational attainment, socioeconomic conditions (Martinez, 1996), language barriers, racism, and isolation, life changes often cause individuals to develop dysfunctional coping behaviors, many of which are present at the time of the offense (Alfonso, 1996).

Casework-Life History Record Investigation

The primary focus of the casework process is to develop a life history record by exploring documented agency and institutional relationships between the client and the client's family. The social worker also determines the effects of both agency and institutional failures to respond and the results of any attempts to assist the client. This casework task is a massive document search that requires the social worker to negotiate and interact with public agencies and institutions such as schools, prisons, churches, hospitals, treatment centers, child protection agencies, public assistance, the military, police departments, jails, and prisons. The process can be made less difficult with family cooperation. Development of strong relationships with the client and the client's family and friends enhances the social worker's understanding of the client's personal story, promotes cooperation among key informants in assisting the defense team, and increases the client's and his or her family's overall comfort level in navigating the court system.

The social worker's search for and analysis of all records should be accomplished confidentially; some records, however, will require subpoena, which makes the information therein discoverable. Discovery is a legal process whereby the opposing counsel becomes privy to client information that it would not otherwise have had (Magera, n.d.). Signed releases should be obtained from all family members with authorization forms being as broad as possible while still protecting the client. The search should not be limited to statutory mitigation factors. Everything about a client's life or background, both negative and positive, should be considered in the mitigation of punishment. Therefore, any circumstance remaining consistcnt with the overall defense strategy may be offered for jury consideration with the goal of convincing at least one juror that the client is not beyond redemption.

Life history record investigations require organization, attention to detail, persistence, and a great deal of time. The information, however, since it serves as the mitigation theme, will illustrate to the court and to the jury who the client is and exactly how he or she has come to the point of serious criminality.

Mediation

This traditional case management activity (Hepworth & Larsen, 1990) is a task-oriented process predicated on maintaining direct communication between parties with a goal of resolving conflict and sustaining a cooperative mood in an adversarial environment (Barker & Branson, 1993). It is the nature of the adversarial legal process to create an atmosphere of anger, confusion, and frustration for all those involved. In capital cases it is not unusual for family members to feel out of the loop, heightening their emotional responses. Alfonso and Baur (1986) suggested that these emotions can be kept in check when a social worker, recognizing the existing power differential between the family and the defense team, works to mediate or facilitate communication and collaboration among a defendant (particularly a difficult one), the family, and the legal team. Additionally, when families work through their feelings of shame, guilt, anger, and frustration, the results arc beneficial to the legal team, particularly in high-profile cases where the media is constantly waiting to capture raw emotion.

Plea agreements. In many cases, hours or even minutes before the beginning of the trial, the state will offer the defendant the opportunity to plead guilty and receive a lesser punishment of life in prison without the benefit of release or parole. Mediation skills are vitally important when the state offers such a plea and the defense attorney believes that it is in the client's best interest to accept the offer. These skills are particularly significant in cases where guilt is unquestionable, and attorneys and judges, acknowledging the strength of the social worker-client relationship, often request that the social worker take part in discussions with the defendant. Regardless of the nature of the crime or the strength of the defense, it is the responsibility of the attorneys and the social worker to convey to the client that the best way to save a life is never to go to trial (Emmelman, 1996; LaBoeuf, 2000). The team must remember, however, the client's right to self-determination in making that ultimate decision.

Preparing the family for trial. Social work mitigation specialists also rely on their mediation skills when preparing the defendant's family and friends for the trial. Capital trials are often stressful, lengthy affairs. The defendant's family and friends often wish to provide support for their loved one by maintaining a consistent presence in the courtroom. For most people courtrooms represent unfamiliar territory. Providing the defendant's supporters with information about the trial process and courtroom procedures often eases their anxiety about the proceedings.

The trial actually begins with the time-intensive process of jury selection. The defendant's supporters must be reminded that they will be sharing the courtroom with the victim's family in what often proves to be a highly emotional atmosphere where potential jurors witness their conduct. The social work mitigation specialist also plays a central role interceding between the family and friends of the defendant and bailiffs, sheriff's deputies, and other security officers present in the courtroom during the trial and during jury deliberations. By working carefully with courtroom personnel, the defendant's family and friends can be offered space away from the media, the victim's families, and the general public. In protected space, following the verdict, they can compose themselves and be directed to an alternative exit when leaving the courthouse.

Information Dissemination

Social work mitigation specialists have a unique opportunity to increase the professional knowledge base by developing and disseminating their work on a variety of topics related to this emerging area of practice. An experienced mitigation specialist responds to A. Hartman's (1993) call for social workers to embrace all "opportunities to enhance [their] knowledge" by using both qualitative and quantitative research methods (p. 3). In this case, taking advantage of both types of inquiry culminates in a narrative account reflecting the defendant's life experience linked with empirical research about the development of criminal behavior (Guin & Merrill, 2000). Social workers involved in mitigation investigations value the art and science of research while understanding their role and the onerous responsibility they have in guiding the process. Karger (1983) reminded social workers that "those who define the questions to be asked define the parameters of the answers, and it is the parameters of the questions and the ensuing answers that function as the lens by which people view reality" (p. 203). The process, therefore, is predicated on the training and expertise that social workers bring to the investigation.

Report writing. The life history analysis and the sentencing recommendations are the end products of the mitigation investigation. Defense attorneys vary in their requests for formal written documentation, ranging from reports that number in the hundreds of pages to simple summaries. Regardless of length, the document is discoverable; all of the information therein will be available to the prosecution.

Deciding on placement. If the defendant is found guilty and sentenced to either life in prison or death, judges and prison officials value the social worker's insight into the defendant's attitude, behavior, physical and mental health, and adaptability to either the general prison population or living on death row. These issues are addressed in the social worker's life history report. It assists prison personnel in determining the best placement for the prospective inmate, either in the general prison population or in a particular location on death row.

The Penalty Phase

A successful penalty phase often resembles a play production (Guin et al., 2003; Schroeder, 2001). The social work mitigation specialist, working with the penalty phase attorney, the defendant, the defendant's family and friends, and experts tells the story of the defendant's life to the audience (jury) in an attempt to humanize the defendant. If the client is to receive a life sentence, this story must convince at least one juror that the defendant's life should be spared (Guin et al., 2001; McCoy, 1999; Schroeder, 2001).

With the goal of producing rich detail and emotion that accurately describes the client's life, the social work mitigation specialist assists the attorney in deciding the order in which each person will testify and develops open-ended questions to be asked of each participant. The focus then shifts to the preparation of each witness. Penalty phase participants often include teachers, coaches, principals, ministers, spouses, children, parents, siblings, grandparents, friends, coworkers, and expert witnesses (Norton, 1992; Stetler, 1999b). It is essential that all members of the penalty phase process support the theme and understand their role in the process. Through clear communication and support, the social worker gently prepares each witness for testimony, thus ensuring a consistent description of the client and the client's life circumstances. The penalty phase testimony begins by developing the story, which is often best told by the defendant. If the defendant is not capable of doing so, however, the social worker can tell the story by first introducing the cast of characters and assigning each a role or responsibility that predicts the outcome of the story. Each participant then provides testimony describing personal knowledge of the events that propelled the defendant into the criminal justice system, as well as ways in which defendant has enriched that person's life. As each witness testifies, theme-supporting documents garnered during the investigation are entered into evidence.

Rallying the Penalty Phase Witnesses

Capital trials are heart-wrenching and exhausting affairs with a mere (statutory) 12-hour period falling between a guilty verdict and the beginning of the penalty phase. The social worker is faced with the daunting task of rallying the members of the penalty phase, often relying on crisis intervention techniques to assist the participants in marshalling their resources and focusing on presenting factual and consistent testimony. Bell (1995) asserted that social workers "have the precise constellation of skills, social-environmental perspectives, and practice methodologies indispensable" for use in crisis intervention (p. 36). When used effectively, these skills work to stabilize the penalty phase participants, helping them to act collectively while successfully delivering their individual message to jurors.

Network Support

Members of the penalty phase process represent a natural network that should be encouraged to provide its members with mutual aid, comfort, and support lasting far beyond the trial (Haran, 1988). By guiding each member in identifying, mobilizing, and enhancing personal coping skills, the social worker may further enhance the functioning of this network (Roberts, 2000) that should be nurtured throughout the appeals process. So, although the goal of the penalty phase is to send a clear message to the jury, the process itself can also act as a vehicle affording the defendant, family, and friends an opportunity for increased understanding, support, and healing.

The Death Sentence and Beyond

A death sentence actually marks the transition between uncertainty over the trial process and anticipation of the appeals process. The social worker can assist the defendant, family, and friends in finding hope in that transition by keeping them abreast of the defense team's postulai activities. As the attorneys begin to prepare writs for appeal, the social worker compiles meticulous files, including a final report of all inconsistencies noted during the trial and any newly discovered information that can be used for appeal and postconviction review.

The social worker's mitigation responsibilities do not end with a death verdict. The relationships developed over the course of the investigation and trial will continue to grow, as the social worker remains a consistent factor in the lives of the defendant, the family, and the attorneys. Cullen, Wright, and Chamlin (1999) affirmed the value of supportive correctional philosophies centering on social support networks for offenders. New networks are developed and existing networks can be strengthened as the social worker prepares the inmate and the family for the transfer to long-term confinement in a state penitentiary. Acting as a liaison, the social worker can assist in the development of supportive relationships between other clients, eitiier lifers or those on death row, by requesting that letters of support be sent to the newest member of the group. To further strengdien family ties and friendships, the social worker assists the family in developing an emotional and financial schedule of support, making it possible for their loved one to purchase needed personal items, books and newspapers, or even enroll in general equivalency diploma or college courses. These activities can ease the transition and help the client to realize that relationships can be maintained and that it is possible to lead a meaningful life, even on death row.

Obstacles to This Emerging Area of Practice

Working With Capital Clients

The willingness to assist defendants despite their often heinous crimes requires careful self-examination and reflection (Alfonso, 1996; Severson, 1994). Sorting through personal values and prejudices is critical. When considering the overrepresentation of racial and ethnic minorities charged with capital crimes, Alfonso (1996) contended that mitigation specialists of the dominant culture who have not thoroughly investigated personal feelings and biases cannot adequately serve minority clients.

Client Rights

Social workers' service to clients must reflect the presumption of innocence and the client's right to due process. Severson (1994) called for flexible and creative application of social work values when working with any client in a rigidly intractable criminal justice system, arguing that in order to do the client justice, one must rethink the concept of victim. Social workers must closely scrutinize an adversarial system where the truth is often lost, particularly when the client is poor and of minority status (Bedau & Radelet, 1987; Radelet, Bedau, & Putnam, 1992). Members of capital defense teams recognize the fact that capital trials are often fraught with faulty evidence and unscrupulous trial tactics, where minorities of poverty status are overrepresented (Radelet & Bedau, 1998). Even more disconcerting is the large body of evidence documenting cases of wrongful conviction, many of which have been perpetrated against people of color (Bedau & Radelet, 1987; Leibman, Pagan, & West, 2000; Radelet et al., 1992).

Safety of Society

Social workers must acknowledge the ethical dilemmas that emerge from balancing the client's best interest with the safety of society. The social work mitigation specialists and investigators who consult with attorneys become bound by the ethic of serving the client's best interest. A social worker who provides testimony or sentencing recommendations must adhere to the social work ethic to report objectively while protecting society (Ashford et al., 1987). Through careful collaboration, however, social work mitigation investigators, specialists, and experts can advocate for a balanced presentation of the evidence serving both the client's and society's best interest (Andrews, 1991).

Confidentiality

Confidentiality is a serious issue that in capital cases is nearly impossible to protect. One must walk a fine line in building the necessary trusting relationship with the client, knowing that sensitive information will be revealed to counsel (Severson, 1994) and at the trial with jurors, victim's families, and the media acting as voyeurs.

The standards of the National Association of Social Workers require social workers to provide objective and truthful evaluations that remain consistent in the face of attorney request (National Association of Social Workers, 1999). Information included in those evaluations should not be discussed with the press during the trial, nor should it be made pubic without the permission of the defendant (Andrews, 1991).

Advocacy

Large numbers of capital defendants are in need of mental health services (Stetler, 1999a). Social workers providing mitigation services should advocate for clients to receive appropriate mental health services while awaiting trial and beyond. It is far too much for an attorney, judge, or jury to expect a defendant in need of psychotropic medication to remain focused on the demanding process of a capital trial. Seeing to it that the client receives medication as prescribed is consistent with the liaison role that social workers play when advocating for the care of the mentally ill (Severson, 1994). There have been documented cases where clients have been given medication inconsistently and as a result, presented poorly in the courtroom. In one case, this most assuredly led jurors to vote for death (Guin et al., 2003).

The Role of Schools of Social Work

Unmet Need

The need for social workers with mitigation expertise surpasses availability. For example, in a recent case unmet need resulted in a capital case being continued during pretrial status awaiting the location of trained social work mitigation specialists. In an attempt to locate additional social workers experienced in death penalty mitigation investigations, the trial judge ordered the trial attorney to contact the deans and directors of Louisiana's 11 graduate and undergraduate schools of social work and provide the court with evidence of a shortage of mitigation specialists. The result of the search demonstrated that while many social work students and graduates express interest in working in the criminal justice system, none of the schools offers curricula tailored to capital mitigation investigations. The trial attorney (A. Bertucci, personal communication, August, 30, 2000) was repeatedly directed to the two social work experts currently providing mitigation services in the state; the very same social workers who, because of an extensive capital client caseload, initially declined that attorney's request for a social work mitigation specialist.

Curriculum Development

The education and training needs of those who wish to work in death penalty mitigation are challenging; however, schools of social work can address the unmet need for social workers skilled in mitigation through curriculum infusion and the development of new courses and field placements at undergraduate, graduate, and continuing education levels (Reed & Roher, 2000). To date, few schools offer courses specific to mitigation work. It is vital that those working in this area of practice understand how racial oppression and poverty arc factors that arc present throughout the history of the death penalty. Life history research should be included in the research curriculum, as the method is vital to developing capital case mitigation. Coursework addressing legal and ethical issues in capital cases, report writing, legal research, working with difficult populations, crisis intervention, and victim mediation are excellent preparation courses for this work. Coursework developed with a multidisciplinary focus would create a learning environment where social work students and law students could work together gaining expertise and forging professional relationships that might follow them upon graduation. Field placements affording students the opportunity to work with other social work mitigation specialists, attorneys, team members, and clients who face possible execution would provide students a forum for developing their skills.

Conclusion

The death penalty remains alive and well in the United States. Courts in 37 states continue to try defendants who are oftentimes mentally retarded, mentally ill, or suffer from neurological disorders (Guin et al., 2003; Steiler, 1999a). With their a long history of advocating for the powerless, social workers are becoming involved in this new practice area, using their skills and expertise to lead mitigation investigations where disability, discrimination, and deprivation in defendant's lives are being woven into the fabric of the penalty phase process. This mitigating evidence is empirically linked with factors identified in the social science literature and presented to juries to guide their focus in making sentencing decisions.

Social workers are well suited to play a central role in the functioning of the multidisciplinary team because of their management and communication skills, and they can use an ecological theoretical approach to interpreting the biopsychosocial realities of the defendant's life. The social work mitigation expert must strive to develop a trusting relationship with both the defendant and the defendant's family from the onset of the investigation, through the trial, and beyond the final sentence.

Although the social worker's tireless pursuit and analysis of the evidence often produces stories of devastating deprivation, compassion must not minimize the gravity of the crime. It is through accepting the crime and carefully considering the events leading up to it that the defendant and the defendant's family, as well as the families of the victims and the community, can begin working toward peaceful resolution and repair, regardless of the Anal verdict (Guin et al., 2003). Only by defending the rights of the guilty can society protect the rights of the innocent.

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Julie Schroeder, PhD, is assistant professor, Louisiana State University School of Social Work. She is a member of the LSU's Office of Social Research and Development working with a team of death penalty attorneys and mitigation specialists involved in capital cases in Louisiana, Florida, Alabama, Mississippi, Tennessee, and Trinidad. She can he contacted at 311 Huey P. Long Fieldhouse, Baton Rouge, LA 70803. E-mail:[email protected].

Manuscript received: August 16, 2001

Accepted: February 8, 2002

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