By Lisa Orloff, ACSW
(May 1996)

As of September 1, 1995, New York state reinstated the death penalty for certain crimes defined as first degree murder. The return of the death penalty after a 21 year absence brings with it challenges not only for the legal community, but for social workers as well.

The death penalty is the ultimate statement about the worthlessness of a human life. When a jury imposes the death penalty, it has concluded that this person's life no longer has value, sense or purpose-a concept completely antiethical to social work. We know that a person is more than the worst thing he or she has ever done, and thus, capital cases demand a social work perspective.

I am the social worker for the Legal Aid Society's Capital Defense Unit, a unit which also includes five attorneys, one investigator, two paralegals, an administrator, and several law students. The inclusion of an in-house social worker as part of the defense team is an acknowledgment that social workers bring a special body of knowledge, skills, and abilities necessary in the representation of people charged with capital crimes.

In my work, I perform traditional social work functions. I am an advocate. In no uncertain terms, the state is trying to kill my client, and I advocate for my client's life.

I provide counseling to the client and his family (overwhelmingly, our clients are men). Unique clinical issues are raised with a client who may be facing the death penalty. For example, depression is common for a client who feels as if he is waiting to die, and a challenge arises in trying to keep him engaged in the complex processes of a capital case.

Group work is also involved. All members of the defense team have something unique to offer. The efforts of lawyers, investigators, paralegals, and social worker must be coordinated. This is done through regular case conferences and staff meetings with the entire unit.

I educate the rest of the staff with regard to the mental health issues our clients face. For example, we discuss how to effectively communicate with a client who is mentally ill or mentally retarded.

I network with mental health experts. Clients frequently need psychological testing, psychiatric examinations, and neuropsychological testing. I serve as the unit's liaison with these mental health professionals.

And perhaps most importantly, I tell the client's story. In order for the judges, juries, and district attorneys to understand my client's actions, the actions must be placed in an extensive social history of the client's life. A social history is constructed through client interviews, collateral interviews with multi-generational family members and others, and the collection and evaluation of life history records (school, hospital, child welfare agencies, etc.) Gathering a social history from a family most often involves convincing them to reveal painful secrets: mental illness, addiction, physical abuse within a family. This can be ameliorated by social workers, as we are trained and educated to do not only thorough diagnostic interviews but sensitive collateral interviews.

The range of mitigation evidence is as diverse as our clients and the presentation of mitigating factors is written into the criminal procedure law. I explore and explain the forces acting on the client-I discuss the people, places and things that shape a client's life. The person-in-environment perspective is crucial to this work.

The presentation of mitigating factors can be used at different stages of a case. For example, the District Attorney has 120 days from a client's indictment to decide whether or not to seek the death penalty. Along with a multitude of legal issues which can be raised during this time, the defense team can produce evidence of mitigation to persuade the District Attorney that this is not a death penalty case.

Legal Aid's Capital Defense Unit was assigned to the first degree murder one indictment in New York City. Manhattan District Attorney Robert Morgenthau appointed a committee of senior assistant district attorneys to help weigh the factors in the case. Several members of the Capital Defense Unit, including myself, met with the committee after our office submitted an extensive psychosocial report outlining mitigating factors. In his first decision in a capital case, District Attorney Morgenthau announced that he would not seek the death penalty.

It has been shown that the death penalty is not a deterrent to violent crime. It has also been shown that it is applied capriciously and disproportionately to people of color. And obviously, it is irrevocable. This is the most challenging position I have held as a social worker, and by far it is the most rewarding. I am proud to be involved in this difficult fight by bringing a social work perspective to death penalty work.