Speaking Across Paradigms: Law and Social Sciences in Death Penalty Mitigation Cases

Introduction 

Recent data published by The Square Circle Clinic reveals that sessions courts across the country have failed to meaningfully comply with constitutionally mandated sentencing safeguards in over 95% of death penalty cases . This is even as the appellate courts overturned nearly nine out of every ten death sentences imposed, indicating that robust procedures and guidelines matter little in practice if the courts fail to undertake an “individualised” sentencing exercise. An individualised sentencing exercise requires the courts to look into the “circumstances of the offence” and the “circumstances of the offender” before deciding on an appropriate punishment for the individual. This is operationalised through mitigation investigation. It involves collecting, analysing and presenting to the court information on offender’s background, culpability, and probability of reformation. The process enables courts to assess how structural, psychological, and social factors shape individual’s moral blameworthiness.

Despite the Supreme Court’s repeated insistence that information about the crime and the criminal that is relevant to sentencing, is crucial for courts in deciding between life and death as a punishment, the presentation of mitigating factors by the defence has remained abysmal. In an attempt to cure this issue, the Supreme Court’s judgement in Manoj v The State of Madhya Pradesh in 2022 (“Manoj”) has sought to formalise the process by calling for a mitigation investigation report and reports of a probation officer, prison officers, and mental health professionals, to assess the suitability of the death penalty or life imprisonment as a punishment.

While calling for these reports is a good first step, the introduction of psychosocial material into the courts has raised a new set of challenges — the limited engagement with such material in sentencing decisions. What seems to be at the crux of this problem is that the two disciplines, the law and the social sciences, differ in how they look at an “individual” and their context while deciding between life and death.  While the social sciences have a layered and nuanced treatment of who the individual is based on their biological, psychological, and sociological context, the law and the courts keep the “incident” or “crime” at the centre while making sense of the individual. The result of this dissonance is that while there is access to a host of information about the individual and their life, courts do not substantively engage with it.

In this article, I examine the persistent gap between the law’s recognition of death penalty mitigation and its substantive application in sentencing. I trace the evolution of the jurisprudence on death penalty mitigation to show that while courts increasingly have access to rich psychosocial information, there remains little guidance on how such material should inform sentencing outcomes. I demonstrate how sentencing practices continue to be dominated by a crime-centric approach, often sidelining the circumstances of the offender. Through an analysis of mitigation information recorded in two judgments from the High Court of Kerala, I argue that mere recording of mitigating factors or information does not amount to meaningful engagement.

Building on this, I situate this failure within a broader epistemic disconnect between law and the social sciences and argue for a normative and methodological shift in judicial reasoning towards meaningful incorporation of psychosocial insights, without which mitigation risks remaining a symbolic exercise.

The Journey of Mitigation in Indian Death Penalty Jurisprudence

 Mitigation has evolved through a long and complex trajectory in death penalty jurisprudence. Forty-six years ago, Bachan Singh v State of Punjab ,1980 (“Bachan Singh”) laid down a two-step process. First, courts are required to look at aggravating factors, which are usually related to the crime, and mitigating factors, which are factors related to the criminal. Second, courts must assess the probability of reformation before imposing the death sentence. The mitigating factors  are the ones that aid in assessing  “extreme culpability” or answer the question of how morally blameworthy an individual is. This is important because many aspects of an individual’s life that are outside of their control, for example the class and caste one is born into, or the dynamics of the family where they are raised, have an influence on their life and worldview, consequently impacting their moral culpability, and hence must be considered while deciding their punishment.

While, Bachan Singh provides some guidance in capital cases, the vague nature of the framework with fundamental normative and procedural gaps has resulted in inconsistency in the capital sentencing process across courts at different levels. Up until the decision in Manoj, mitigation investigators, usually professionals trained in social science disciplines, were not granted access to collect and investigate these circumstances. Mitigating factors were often presented by defence lawyers as a bare checklist of unrelated facts about an individual without any “individualisation.”

Manoj lays down that information is to be brought forward by the state in the form of different reports, and an opportunity is also to be provided to the defence to collect and present information regarding these factors. As a result, giving formal access to mitigation investigators to conduct interviews has become procedural at the appellate level where the courts call in for a number of reports seeking information on factors such as childhood adversities, educational background, abuse and neglect, any history of psychological ailments, conduct in jail. The practice of mitigation itself has deepened as more complex and comprehensive information about the life of the individual is now available to the courts. However, this is only happening at the appellate courts. Data shows that the trial courts have shown a lackadaisical approach. In 79 out of 83 cases (95.18%) from 2025, the trial courts have not complied with the guidelines laid down in Manoj. In the subsequent sections, I show that even where the reports are being called for, there is no real guidance on how courts should be looking at this information or towards what end. As a result, despite being presented with such rich information, the level of qualitative engagement by the courts remains uneven across the board with an overwhelming focus being on the crime.

 Crime v the Criminal

Existing research on capital sentencing decisions shows that there is an overwhelming reliance on crime in the sentencing decisions in order to characterise the person. There is rampant use of phrases such as “beastly”, “human monster”, “demon”, “blood thirsty demon”, and “brute instinct”, reflecting a view of individuals as fully autonomous actors unshaped by life circumstances. Studies indicate that this is even more prevalent at the trial courts in cases where the death penalty is imposed, with a lot of focus being just on the crime. This approach to understanding an individual fundamentally assumes that what an individual did and their reasons for doing the same reside largely inside them. It assumes that criminality is inherent to them and stems from defective traits or behaviours. The courts almost intuitively take this view, whereas the mitigation information often provides a more comprehensive picture of who the person is and what circumstances got them to where they are today and not necessarily why or how the crime happened. Even in cases where courts are presented with such detailed life histories in the mitigation investigation reports, they do not seem to use it to understand who the person is.

In the section below, I engage with mitigation information cited in two judgments from the High Court of Kerala to show what meaningful engagement, even from selective information, could look like if the Court were truly committed to understanding the individual before them.

Two different outcomes, same silence on mitigation

In Muhammed Ameer-Ul Islam v The State of Kerala (“Ameer”), a case concerning the rape and murder of a 30-year-old law student in Kerala, allegedly committed by a migrant worker from Assam, the Kerala High Court was confronted with an extensive body of information relating to the accused, Ameer. This included information such as the accused being from a poor socio-economic background, early entry into the workforce, young age of the accused, ineffective legal representation, etc.

However, in characterising who Ameer is, the judgment barely engaged with the information presented to do a culpability analysis. Instead, the conclusion read, “…. we do not think that the said mitigating circumstances are sufficient to commute a death sentence to imprisonment for life.” Not only did the court fail to engage with the extensive information that it could access, but it also dismissed the information as “…. there are no mitigating circumstances that favour the accused.”

Just on the issue of poverty alone, there is a host of literature that now tells us that poverty, disrupted family structures, and poor parental supervision predict higher risks of persistent offending into adulthood. Young age, another factor recorded by the Court has been recognised by the law itself as a factor that is of “compelling importance” in informing culpability assessment. Neuroscience literature is clear that the part of our brain responsible for executive functions like reasoning, self-regulation and decision making, continues to develop well into the mid-twenties. All of these factors shape emotional and cognitive development, and decision making. A meaningful culpability analysis would take into account how poor socio-economic circumstances lead to less educational attainment and consequently, early entry into the workforce. When young age intersects with deprivation and instability, culpability may be reduced because the individual’s internal restraints against extreme conduct are less firmly developed, irrespective of the harm caused. A culpability inquiry would therefore ask whether Ameer’s life reflects a fully formed, deliberative criminal agency, or if it reveals a developmental trajectory marked by structural deprivation and constrained life choices that lessen moral blameworthiness.

The problem here is not necessarily an issue of what outcome the court is arriving at. Even in cases resulting in a commutation, there seems to be a lack of understanding as to why circumstances like abuse, trauma, or adverse childhood experiences must play a crucial role in determining an individual’s moral culpability and in determining an appropriate sentence for them.

In another case from the Kerala High Court, Nino Mathew v The State of Kerala, 2024 (“Nino”), that resulted in a commutation, the Court made detailed observations from the mitigation investigation report in the judgment. It noted that Nino had suffered severe physical abuse, neglect, and trauma, which had deeply impacted him on a psychological level.Although social science literature is replete with studies demonstrating the long-term impact of neglect, physical abuse, and related adversities, the decision failed to explain why these factors were specifically relevant to the individual circumstances of Nino. The High Court judgement noted, “conclusion arrived at by the Mitigating Investigator, the case of the first accused cannot be said to be a case where the possibility of reformation can be ruled out…” and concluded by sentencing Nino to 25 years of imprisonment without remission. The court restricted itself to the principle of reformation.

An analysis of Nino’s life circumstances would reveal how individuals exposed to sustained trauma or have experienced adverse experiences in their formative years struggle to form stable emotional boundaries, regulate intense affect, and respond proportionately under relational or situational stress. Further, there is strong scientific research which suggests that the exposure to such remote experiences can have a long lasting impact on an individual affecting their ability to overcome interpersonally challenging and difficult life situations. Given that Nino had experienced severe physical abuse, neglect, and trauma in his childhood, he was at an increased risk of mental health issues and the mitigation information in the judgment suggested that he had been impacted on a deeply psychological level. A culpability analysis would have taken these factors into consideration since decision-making and capacity to regulate are precisely the capacities the law looks into when an individual is being tried for a crime. If trauma has impacted these capacities, then that must be considered when assigning moral responsibility to individuals for their actions.

Both the judgements, although differing in outcomes, reveal a common and systemic failure in the judicial engagement with mitigation information. In Nino’s case, despite extensive material detailing early abuse, neglect, psychological vulnerability, absence of criminal antecedents, sustained prosocial behaviour, and demonstrable reform over years of incarceration, the Court did not analyse how these factors shaped his moral agency or decision-making capacity at the time of the offence. Instead, the material was treated as descriptive narrative, ultimately eclipsed by the gravity of the crime. A similar pattern emerges in Ameer’s case, where factors such as young age, socio-economic deprivation, adverse childhood experiences, lack of prior criminal history, good prison conduct, family support, and likelihood of reformation were explicitly recorded but then rejected through categorical assertions that such factors could not mitigate extreme culpability in heinous crimes. In both cases, the courts failed to explain how these factors relating to the accused’s life history influenced culpability, choosing instead to rely on generalised conclusions that effectively foreclosed individualised assessment.

Law and Social Sciences: Speaking across Paradigms in Death Penalty Mitigation

What emerges from the analysis is not merely lack of any guidance but a deeper epistemic resistance. While the courts are procedurally complying by calling for reports, they fail to meaningfully use it for assessing culpability. The failure to engage with such rich material also reveals a deeper unease – a persistent dissonance in how the two disciplines, law and social sciences, understand individual context and their actions. The approach of the courts remains grounded in ideas of individual agency and responsibility, which sit in sharp contrast to the life stories shaped by neglect, poverty, trauma, and other factors that mitigation brings forward through extensive information collection.

The mitigation investigation reports, led by the defence, attempt to go back into the past in order to bring forth all the factors that have influenced the life of the accused. Mitigation draws from disciplines such as sociology, anthropology, and criminology in putting together the life story of an individual. They also help put together a broader and structural account of how the life of an individual is shaped by the big and small institutions around them, and in turn also influence them. The law, in the context of death penalty mitigation, seeks to get to a more definitive answer on how much to punish, and rightly so, whereas mitigation offers  probabilistic and non-deterministic insights and does not establish a direct causal link between life circumstances and criminal behaviour.

These disciplines are not in conflict; rather, their methods can be mutually reinforcing. Mitigation information equips the law with richer material in arriving at a punishment more meaningfully by situating the actions within a broader life circumstance. Despite being so closely intertwined, law’s reluctance to substantively engage with such information may stem from the design of sentencing itself where decisions are often shaped by public outcry, preference to retributivism in heinous offences, and other factors that leave little room for the probabilistic and context-sensitive insights that mitigation offers. Unless these tensions are acknowledged and the points of convergences are recognised, mitigation information will continue to be treated as a procedural formality.

Conclusion

 Death penalty sentencing law has incrementally developed in the recent years, but a gap remains between the availability of mitigation material and its use. While the courts have increasing access to detailed psychosocial information about the accused, a crime-centric approach persists, sidelining offender circumstances. The analysis of the two Kerala High Court judgments further demonstrates that even where such information is recorded, it is rarely integrated into a substantive assessment of culpability, reducing mitigation to a largely procedural exercise.

This disconnect points to multiple issues; lack of normative clarity in law on how to treat the mitigation material, incompatibility between law and social science’s approach to understanding an “individual”, institutional design, lack of training of judges on this aspect, etc. While part of the answer lies in getting more normative guidance from the law, more fundamentally, courts need to move away from viewing mitigation as a procedural compliance. There is a need to embrace the substantive commitment of sentencing to tailor the sentence for an individual proportionate to their culpability and be cognisant of their probability of reformation. Urgent reforms are needed on multiple levels, but unless the courts change their approach and adopt a broader lens, mitigation will remain a mere symbolic exercise, raising deeper questions on whether the courts are even well-equipped to understand and treat information of this nature.

The author discloses that The Square Circle Clinic, with which they are affiliated, conducted mitigation investigations in the cases discussed.  The author thanks Neetika Vishwanath for her editorial inputs which helped shape this article. 

Featured image from Supreme Court Observer.