By: Laurie Larson, Paralegal, JLongtin Law

One of my primary areas of responsibility at JLongtin Law is mitigation.  I bring together different sources of information in the form of a mitigation report for the attorneys to use during the plea-bargaining process with the District Attorneys.  When people ask me what I do, and I provide this description, some people’s responses indicate confusion about the purpose of mitigation.  After all, people are either guilty or not, right?  If the evidence proves guilt, what other information is needed?

One of the most basic explanations of criminal behavior is that it is the result of poor decision-making.  However, sometimes mental illness plays a part in that decision-making process.  Helping to shed light on the circumstances leading to criminal behavior is not meant to excuse the behavior or render the defendant guilt-free.  It is meant to provide insight into why the behavior occurred.  If it was influenced by mental illness, perhaps it can be prevented in the future by addressing the symptoms of mental illness and not just assigning some of the usual punitive consequences prescribed by our justice system.

A mitigation report includes a client’s mental health history.  It explains the symptoms experienced by a client and how those symptoms potentially influenced the client’s thought process leading up to an incident.  It addresses the treatment a client is or is not receiving.  It also includes any extenuating circumstances surrounding the incident.  Has someone’s mental illness been exacerbated by recently losing a job, a home, or a loved one?  Has he been under an insurmountable level of stress lately that triggered a psychotic episode?  Does she believe she has a mental illness and if not, is she receiving any type of treatment?  These types of issues can help explain a person’s behavior and provide recommendations for how best to reduce the likelihood of criminal behavior recurring.  As Jennifer Longtin, the founder of our firm says, “We believe that a person is not the sum of their worst day, but so much more. We specialize in cases that involve mental health and provide resolutions that work for our clients.”

One way to think about the purpose of mitigation is to think about what society would be like if we decided that people who develop physical illnesses should be treated according to the degree to which those illnesses were brought about by poor decision-making.  For example, the National Institute on Aging found that some of the risk factors for nearly all heart diseases, are a sedentary lifestyle, not eating enough fresh produce, and spending time engaging in stressful activities instead of activities one enjoys.  (See https://www.nia.nih.gov/health/what-do-we-know-about-healthy-aging#hobbies.)  What if people who did not exercise, had unhealthy diets for most of their lives, and worked in stressful jobs did not receive medical care if they had a heart attack?  We could decide that insurance companies, private and public, are only required to provide minimal care to someone who has engaged in unhealthy behaviors and is brought into an emergency room during a heart attack.  They could provide just enough care to keep the person alive but would be under no obligation to provide surgery necessary to prevent another heart attack.  After all, why should everyone else be required to contribute to that person’s care through higher insurance premiums or taxes?  This mandate could be extended to include all health problems related to being overweight, smoking, drinking alcohol, stress, etc.  Just think of the money we could save!

Fortunately, our society has decided that even though people make poor decisions, there could be many reasons for those decision that are beyond their control.  Children’s choices of food can reflect their parents’ choices, not their own.  Parents’ choices could be due to lack of access to healthy food and stress-free jobs.  Perhaps people are struggling financially.  We are not all exposed to healthy habits early in life.  Once unhealthy habits are formed, they are difficult to change.  

Instead of giving people with unhealthy lifestyles a death sentence, we often save their lives regardless of the poor decisions they have made along the way.  This is not to say we do not let people slip through the “lack of money and lack of insurance coverage” crack.  We also do allow people to die sometimes if, for example, it means giving an available healthy liver to someone who was born with a defective liver, rather than to a middle-aged person who has spent many years in active alcoholism. However, the general practice is to save the life, then counsel the patient on how to adopt a healthier lifestyle.

Mitigation is an attempt to bring that same sense of humanity to those struggling with mental illness.  Even though our criminal justice system is set up to deter future criminal behavior, it can also be sympathetic to the extenuating circumstances that lead people to this behavior.  Mitigation can be viewed as one of our criminal justice system’s expressions of compassion.