That's the title of Jeffrey Toobin's latest Annals of Law article in the current issue of the New Yorker. It's subtitled, "A new way of looking at the death penalty." Here'e the abstract:
ABSTRACT: ANNALS OF LAW about Danalynn Recer of the Gulf Region Advocacy Center and the use of mitigation in death-penalty cases.
The death penalty is withering. The change has been especially striking in Houston, which has long reigned as the death-penalty capital of the nation. If Harris County, which includes Houston and its nearby suburbs, were a state, it would trail only the rest of Texas for the number of people executed. But last year prosecutors in Harris County sent only two people to death row. Explanations for the change vary. Crime is down everywhere, and fewer murders means fewer potential death-penalty cases. Widely publicized exonerations of convicted prisoners, based on DNA evidence, may have given some jurors second thoughts about imposing the death penalty.
Another explanation for the decline in death sentences has been the increasing use of mitigation, a strategy that aims to tell the defendant’s life story. In Texas, the most prominent mitigation strategist is a lawyer named Danalynn Recer, the executive director of the Gulf Region Advocacy Center. Based in Houston, GRACE has represented defendants in death-penalty cases since 2002.
When the Supreme Court allowed executions to resume, in 1976, after a four-year hiatus, the Justices mandated a two-phase structure for death-penalty trials that has become familiar in subsequent decades. The “guilt phase” would determine whether the prosecution established beyond a reasonable doubt that the defendant committed the charged capital offense. Following a conviction, the “penalty phase,” a separate mini-trial before the same jury, would consider whether the defendant should be sentenced to death. To make that determination, the Court sought to insure that jurors follow a rational process, rather than make a snap judgment about whether a defendant should live or die. This system, which became known as “guided discretion,” required jurors to weigh “aggravating factors” and “mitigating factors.”
Mitigating factors generally include a defendant’s mental illness, or the absence of a prior criminal record, but the Court also made sure that defendants could come up with their own mitigating factors to present to jurors. For a long time, defense lawyers didn’t know how to use this option to their advantage, and many largely ignored the penalty phase. In the nineteen-eighties, some death-penalty activists started taking a more systematic approach. The key figures in the change were not lawyers but anthropologists, ex-journalists, and even recent college graduates. The idea was to use the mitigation process to tell the life story of the defendant in a way that explained the conduct that brought him into court. The work was closer to biography than criminal investigation, and it led to the creation of a new position in the legal world: mitigation specialist. Tells about Recer’s work with Clive Stafford Smith and discusses the use of mitigation in the death-penalty cases of Scott Thibodeaux and Juan Quintero.