As we transition to a new year, we tend to reflect on the past and look ahead to the new. Unfortunately, the criminal law–statutes and caselaw–is backward-focused. For example, the legislature reacts to past events when fashioning new statutes, which is why we have egregious penalties on our books in response to the “Summer of Violence,” the “War on Drugs,” and more recently, fentanyl tragedies. Legislators focus on preventing bad things from happening in the future by harshly punishing past behavior, yet research shows that strict punishment does not deter future crime.
And criminal law practice depends on caselaw, the published decisions our appellate courts have issued, to interpret statutes and other cases. Caselaw again focuses on the past–it is the attempt of the courts to figure out how to solve a problem based on how they (the appellate courts) have already done so. Stare decisis, or the concept that we should follow the rules that were already decided by earlier cases, requires the courts to use old interpretations of facts and law. It doesn’t matter how wrongheaded those decisions might have been, or what motivations and biases the judges that pronounced them had. For example, the horrible Dred Scott decision was authored by Chief Justice Roger Taney, who was born into a wealthy slave-owning family.
As defenders, though, we are forward-focused. Our duty is to help the client. We can’t always solve the client’s problem by eliminating it (for example, getting a case dismissed or winning at trial). But we can mitigate it. Mitigation explains behavior by investigating what in the client’s life led to criminal charges. Mitigation seeks the turning point which resulted in the person ending up where they are now. By discovering what led to that turning point, we can identify what the client needs to avoid repeating the same outcome.