Developmental impairments in moral competence as mitigation in capital cases

In this article we propose a mitigation approach in those capital murder cases where traditional mitigation themes such as mental illness or low IQ are not present. To avoid prosecution characterization of these defendants as simply evil or antisocial personalities, we suggest reframing the issue as one of moral incompetence, based not on character defect but rather stemming from profoundly neglectful or abusive parenting. Under this reframing, defense teams would present evidence about the many antecedents of poor moral competence, its origins in neglect or abuse, its neurophysiological basis, and, most importantly, its potential for change. Evaluation in such cases would pay close attention to early childhood and family characteristics. We also recommend presentation of research findings showing how moral competence can be improved in adulthood, given appropriate guidance and support. This approach to mitigation is consistent with much of the developmental literature. But juror responses to these mitigation themes are as yet unknown.