What Does A Mitigation Consultant Do?
The American Bar Association has expressly recognized the critical role of the mitigation specialist in capital litigation. In its 2003 revision of the “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,” the ABA sets forth, in “Guideline 4.1—The Defense Team and Supporting Services,” that “[t]he defense team should consist of no fewer than two attorneys qualified in accordance with Guideline 5.1, an investigator, and a mitigation specialist.” The accompanying Commentary states:
“A mitigation specialist is  an indispensable member of the defense team throughout all capital proceedings. Mitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have. They have the time and ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may never have disclosed. They have the clinical skills to recognize such things as congenital, mental or neurological conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case.
“Perhaps most critically, having a qualified mitigation specialist assigned to every capital case as an integral part of the defense team ensures that the presentation to be made at the penalty phase is integrated into the overall preparation of the case rather than being hurriedly thrown together by defense counsel still in shock at the guilty verdict. The mitigation specialist compiles a comprehensive and well-document psycho-social history of the client based on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client’s life history; identifies the need for expert assistance; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation.
“The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a sentence less than death.
“For all of these reasons the use of mitigation specialists has become “part of the existing ‘standard of care’” in capital cases, ensuring “high quality investigation and preparation of the penalty phase.” Guidelines, Commentary: The Core Defense Team: (B) The Mitigation Specialist.
The National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS), a section of the National Legal Aid & Defender Association (NLADA), is dedicated to the promotion of fair, humane, and equitable sentencing and confinement decisions for all people in America. NASAMS (www.nasams.org) advances the field of sentencing advocacy by fostering the professional development of its members and upholding the ethical standards of practice of the organization.
For an overview of the history of defense-based sentencing advocacy, and the emergence of the mitigation specialist as a key member of the capital defense team, this link will be most helpful: http://www.nasams.org/about_nasams/about_history.