This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that led nonlawyers (and a few lawyers) to the role of mitigation specialists. In Part III, the article concludes by examining the further recognition that mitigation specialists have received in the 21st century, from court decisions to the revision of the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (in 2003) and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (in 2008). This development coincides with a wider appreciation of the need for individualized sentences in noncapital cases, following the High Court’s decisions ending rigid federal sentencing guidelines and mandatory life without parole sentences for crimes committed by children. Mitigation specialists, meanwhile, are here to stay.
Russell Stetler, Lockett v. Ohio and The Rise of Mitigation Specialists, 10 ConLawNOW 51 (2018)