Is a Mitigation Specialist the Key to Fair Punishment?
Mitigation specialist Victoria Rusk explains what a mitigation specialist does in capital murder cases and how learning a defendant's life story can show judges and jurors the real "why" behind a crime.
About This Episode
Crime affects all of our lives—anyone can be accused, know someone accused, or serve on a jury. Mitigation expert and author Victoria Rusk gets to the “whys” behind a crime, helping jurors, DAs, and attorneys to work for fair and appropriate punishments, in hopes of reducing the American mass incarceration crisis. Her recent book The Handbook of Mitigation has quickly become canon within the legal mitigation sphere for anyone interested in sentencing justice. How did a former broadcast journalist from Lubbock, Texas, become a leading professional advocate for fair sentencing? Find out for yourself on Episode 79 of Open Mike.
Show Notes
- Victoria’s background and bio.
- Welcome to Victoria Rusk!
- You’re a mitigation specialist — can you tell us what a mitigation specialist is?
- That’s fascinating! You’re usually brought in after the conviction?
- So, it’s not just death row, it’s anyone facing a serious criminal trial, and you are brought in to humanize the defendant so lawyers can argue the best they can for them?
- As I mentioned in my intro, and I don’t think many people know this, Michigan has a man named Marvin Gabrion on death row. What do you do for someone like Mr. Gabrion before trial? How do you help someone facing such serious consequences?
- The key in humanizing someone is to figure out how they love, and how they express and show love.
- You’re dealing with some people who are hurting and killing families… how do you show their capability of love to a judge or jury? What are some examples?
- Creating an atmosphere of trust and compassion with a client’s family or other loved ones will make them more inclined to freely offer up humanizing information to a jury.
- We’ve talked a lot about how little resources there are for indigent defendants and you’re spending hundreds, if not thousands, of hours on an individual case. Who’s paying your bills?
- The criminal justice system is broken —attorneys have hundreds and hundreds of cases… the COVID-19 pandemic has the ability to turn the criminal justice system inside out in terms of both humanizing those working within the system and those accused of a crime.
- I didn’t know that anyone with a capital case was entitled to services like yours. What about in a state like Michigan that doesn’t have the death penalty unless you’re on federal land? Is there such a thing as a mitigation specialist if someone is facing life in prison without parole?
- Post-conviction in mitigation is very different because there are additional politics in the process to consider and you have to really evaluate what’s going to be convincing or moving.
- If you’re arguing that someone is not guilty, you may not want to be arguing mitigation… are you usually arguing mitigation when someone is likely guilty or definitely guilty?
- So, it’s almost like any case… drunk driving, robbery… you can help humanize the dependent and look at the bigger picture to understand why they’re in the situation they are. You’re kind of like a social worker.
- We’re talked about issues with mass incarceration and prison overcrowding in this country… how can mitigation specialization help that?
- In general, besides buying your book, The Handbook for Mitigation, which every attorney in the country should get… what are your recommendations for someone who can’t afford to hire you?
- There two are trainings Victoria recommends: Dr. Donna Beegle’s poverty-informed training, and Undoing Racism: The People’s Institute for Survival and Beyond.
- Thank you to Victoria Rusk for being on the show and thanks for watching Open Mike Podcast!
FAQs
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What does a mitigation specialist do?
According to Victoria Rusk, a mitigation specialist is part of the defense team in capital murder cases. While the investigator investigates the crime itself (the who, what, when, where and how), the mitigation specialist’s job is to learn about the client as a person and how or why they got into this position, which she calls “the real why behind the crime.”
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How much time does a mitigation specialist spend on a single case?
Rusk said that on most of her cases where the death penalty was waived she worked over 400 hours. On the case she took to trial the previous year she worked over 1,000 hours, interviewing the client and all his family members and building a community around the case; a death-qualified jury gave that client life without parole, which she called a win in her field.
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Who pays for a mitigation specialist in capital murder cases?
Rusk said she is paid by the county because she is court-appointed in capital murder cases. Attorneys use case law to write motions for the funding needed for mitigation, and according to the ABA guidelines, having a mitigation specialist is mandatory in capital murder cases.
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Can mitigation help someone facing life without parole rather than the death penalty?
Asked about a state like Michigan, which does not have the death penalty, Rusk said yes: there is federal case law supporting the hiring of a mitigation specialist that attorneys can use to argue for funding in court-appointed cases. In private cases, she said, the family can be told why someone is needed, for example to understand why a son facing a third-DUI manslaughter case is drinking.
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What can defendants do if they can't afford a mitigation specialist?
Rusk said she made her book affordable for that reason. She recommends two trainings she calls invaluable to criminal defense, a poverty-informed training and an anti-racism training, then gathering the client’s education, criminal, mental health and medical records, and finding people outside the family who don’t have a dog in the fight and can confirm the client’s life patterns.
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