CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, October 28, 2013

Mundy on Capital Mitigation Investigation and Non-Capital Clinics

Mundy hughHugh M. Mundy (The John Marshall Law School) has posted It's Not Just for Death Cases Anymore: How Capital Mitigation Investigation Can Enhance Experiential Learning and Improve Advocacy in Law School Non-Capital Criminal Defense Clinics (California Western Law Review, Forthcoming) on SSRN. Here is the abstract:

The number of criminal defendants who are charged and convicted in federal and state courts has risen dramatically over the last two decades. In federal courts, over 100,000 defendants were charged in 2011, nearly doubling the same figure from 1995. Moreover, almost 90-percent of those charged in 2011 entered guilty pleas and faced sentencing. The percentage of guilty pleas in most states is comparable to federal totals. In Pennsylvania and Illinois, for example, the percentage of guilty pleas entered by criminal defendants outpaced federal numbers over a similar time period.

At the same time, recent United States Supreme Court jurisprudence has resulted in a significant expansion of judicial sentencing discretion. As never before, federal and state judges have wide latitude to sentence criminal defendants within or outside advisory guidelines. As a result of these recent trends, intensive pre-sentencing investigation and innovative sentencing presentations by defense counsel are especially crucial. Despite the unprecedented demand for effective sentencing advocacy, few criminal defense lawyers possess the skills, resources, or time to conduct comprehensive mitigation investigations.

To respond to this need, law school criminal defense clinics offer an ideal arena to introduce mitigation-intensive advocacy. In fact, a blueprint for clinical use may be drawn from the structured and exhaustive investigations conducted in death penalty cases. A sentencing advocacy model drawn from capital mitigation investigation advances several goals of clinical teaching and cultivates so-called "narrative modes of reasoning" vital to legal education. Moreover, use of such a model is consistent with a shift in Supreme Court jurisprudence towards a greater acceptance of capital mitigation concepts in non-capital cases. Most critically, use of capital mitigation techniques in criminal defense clinics enables students to advocate zealously and effectively for clients.

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