As the the various Innocence Projects around the country continue to find people on death row who turn out to be factually and provably innocent, the death penalty is steadily losing advocates. Many of those who have long believed in the eye-for-an-eye morality of capital punishment are now given pause by the specter of the state taking the life of someone who may turn out to be innocent of the murder for which he or she was sentenced to death.
It is precisely that fear that led first New Jersey in 2007, New Mexico in 2009, and then Illinois last year, to ban executions.
Now, in addition to the innocence factor, there is a new strategy used by capital punishment opponents that is meaning fewer death sentences even in the formerly execution-happy state of Texas. It is called mitigation.
In this week’s New Yorker, legal correspondent, Jeffrey Toobin, describes the strategy in a profile of one of its most successful practitioners, Houston-based Danalynn Recer.
Unfortunately, full access to the story requires a subscription.
However, this is a fairly decent abstract:
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.
As attorney Clive Stafford Smith says of Recer at the story’s end: “There were lawyers who would do death-penalty cases and do no mitigation investigation at all. She’s changed that standard. There wasn’t anyone who was doing that work before her. When she want back to Houston, it was the death penalty capital of the world. She can take a lot of credit for the fact that it isn’t anymore.”
Photo of Recer by Aaron M. Sprecher For The Houston Chronicle