Mitigation: Humanizing You to the Jury

July 21, 2022 | Bill Henry

If you are facing criminal charges, it is the job of prosecutors to emphasize your flaws while downplaying your humanity. Therefore, a tough, resourceful criminal defense attorney is your best ally. The mitigation process is a way for your attorney to present you as a complete person with a past and future. Read this article to learn more about mitigation and how to avoid being reduced to the worst moments of your life.

Speak with a Criminal Defense Attorney Today

A criminal conviction can follow you around for the rest of your life. A criminal defense attorney skilled in the art of mitigation can help make sure it doesn’t. Call 303-688-0944 today to begin your free case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

What is Mitigation?

Mitigating circumstances are such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability.

People v. Phillips, 652 P.2d 575, 576 (Colo. 1982)

Mitigation is a way to humanize you to the jury.

Your attorneys may be able to find a way to get you help without judicial intervention, such as jail time. Mitigation can be done at the plea-bargaining stage or in the sentencing phase of a criminal trial.

Essentially, mitigation means crafting a narrative that puts your alleged offense in context according to what has happened during your life, particularly at the time of the alleged offense.

Prosecutors will attempt to reduce you to your crime. It is your criminal defense attorney’s job to present your humanity.

Mitigation is Not a Defense

It’s important to keep in mind that mitigation is not an affirmative defense. Mitigation has very little to do with your guilt or innocence. It merely serves to provide a complete picture of your life.

Criminal actions typically do not happen in a vacuum. Understanding your motivations and background is crucial for a jury considering how to punish you. The goal of mitigation is to show a complete picture of who you are as a person — rather than just a snapshot of your worst moment.

Now that you have an understanding of mitigation’s purpose, let’s take a look at how your attorney will put together your mitigation strategy.

What are Mitigating Factors?

Colorado law sets what are called presumptive sentencing ranges for various types of criminal offenses. If you are found guilty, the jury must decide on a sentence within the presumptive range for your crime. However, juries in criminal cases must also consider both aggravating factors and mitigating factors.

An aggravating factor increases the gravity or severity of a crime and usually leads to harsher sentences. A mitigating factor does the opposite — it is meant to reduce your sentence:

If the court finds such extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presumptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.

Colo. Revised Statutes § 18-1.3-401

The Mitigation Investigation

This is where your attorney will dig deep into your background. Every corner of your past will be thoroughly examined for any potentially mitigating information that could reduce your sentence.

A mitigation investigation should include conversations with people who have firsthand knowledge of the events in your life. This almost always includes your family. Other individuals your legal team could potentially talk to are your:

  • friends
  • neighbors
  • teachers
  • pastors
  • employers
  • co-workers
  • doctors
  • therapists

What Mitigation Information Should You Provide?

In order to develop an effective mitigation strategy, your attorney will examine your:

  • past, present, and future
  • life circumstances at the time of the alleged offense
  • response to the alleged offense
Childhood

Your attorney will want to find out what was your childhood like. Were your parents strict or lenient? What sort of discipline methods did they favor? Is there any history of abuse or neglect by your parents or other authority figures?

If you got into trouble as a juvenile, your attorney will want to know what crimes you were adjudicated for.

Mental Health and Substance Abuse

Have you ever had any mental health diagnoses as a child or adult? If so, did you seek treatment? The same goes for substance abuse problems and any subsequent treatment.

Let’s say you were diagnosed with a type of mental illness that, when you’re not taking medication for it, can cause you to act erratically and make poor decisions. If that was the case for you at the time of the alleged crime, your attorney may be able to use this information to indicate your frame of mind as well as how you’re doing now back on your medicine.

Education

Your attorney will also delve into your education history, as your level of education plays an important part in one’s current and future circumstances.

If you didn’t complete high school, are you willing to get your GED? Are you currently enrolled in a trade school or taking college courses? Having this kind of information will help present to the court what you’re doing to improve your life.

Other relevant factors:
  • any legal issues as an adult
  • any military service
  • childhood and adult medical history
  • employment history
  • community involvement
  • relevant information about the day of the incident in question

What To Do Before Court

Depending on your case, there are a number of things you can do before going to court that will strengthen your attorney’s mitigation strategy.

Take steps toward rehabilitation and document what you’re doing.

It isn’t always enough to say what you will do — a jury is more interested in hearing what you have done. Enroll in a drug treatment program or counseling sessions. Make sure to preserve these steps with certificates or letters from counselors or employers.

Have character witnesses ready.

Friends, spouses, pastors — anyone who knows you well and can attest to your good character.

Write down other actions you’re willing to take.

If you’re trying to avoid jail time, for instance, perhaps you’d be willing to pay fines and complete a number of community service hours.

If you struggle with alcohol or drugs, get involved in Alcoholic Anonymous or Narcotics Anonymous.

If your temper is a problem, enroll in a local anger management course.

A Colorado Case: United States v. Guijarro

In February 2016, Jorge Alfredo Guijarro pleaded guilty to drug trafficking charges in Colorado’s federal district court. He was sentenced to 120 months in prison — 31 months less than the minimum sentence for his crimes based on mitigating factors his attorney presented to the court.

Despite the reduced sentence, Guijarro appealed his case on several grounds, one of which was ineffective counsel. He claimed his defense attorney did not present enough mitigating factors at his sentencing about his role in the drug organization.

The appeals court disagreed.

U.S. District Judge Christine Arguello found that Guijarro’s attorney had in fact presented numerous mitigating factors that supported lowering his sentence.

Among those mitigating factors were:
  1. Guijarro came from an area in Mexico under “the control of” and “run by” the drug cartel.
  2. Guijarro had to choose to take part in the drug trade or have “something bad happening to [his] family.”
  3. Threats have been made against Guijarro’s family and stepdaughter.
  4. Guijarro’s family lives in constant fear.
  5. Guijarro was faced with being involved in the drug trade as a way to support his family or end up in prison with no source of income.

United States v. Guijarro (D. Colo. Apr. 23, 2018)

Guijarro’s attorney then urged the court to give him a lighter sentence, which the court ultimately did.

The appeals judge found that Guijarro’s attorney provided sound and reasonable representation.

Start the Mitigation Process Today

If you have been charged with a crime, it’s never too early to start the mitigation process. Our Criminal Defense Team knows what to say to the jury, when to say it, and how to say it. Call 303-688-0944 today to begin your free case assessment. Si gustarÍa hablar con nosotros en español, por favor llámenos al 720-359-2442.

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