NASAMS Code of Ethics and Professional Standards

Greetings from the National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS)!  We are writing to share an important development in Mitigation and Sentencing Advocacy.

While mitigation and sentencing advocacy have been an integral part of defense-based advocacy since the late 1980s, this is the inaugural publication of the  Code of Ethics and Recommended Minimum Requirements for Practicing Sentencing Advocates and Mitigation Specialists. Recognizing the need to establish a standard of practice for our profession, in 2018, the NASAMS Executive Committee began researching and drafting the Code of Ethics and Minimum Standards for Mitigation and Sentencing Advocacy.

These standards are the result of extensive collaboration among seasoned practitioners and reflect our collective commitment to defining professional expectations, protecting the integrity of our work, and ensuring quality advocacy for clients nationwide.  You will find a copy of the finalized standards attached, and we respectfully ask that you circulate them within your organization and professional community.

We hope these guidelines serve as a helpful resource for those who train, supervise, or work alongside mitigation specialists and sentencing advocates. Thank you for your continued commitment to advancing quality defense advocacy.

In solidarity for a more just society,

The Executive Committee
The National Alliance of Sentencing Advocates  Mitigation Specialists (NASAMS)

Code of Ethics and Professional Standards

In 1989, the first National Conference on Sentencing Advocacy was held in Washington, DC.  This led to a 1991 concept paper entitled An Emerging Profession: White Paper on Sentencing Advocacy, written by a group of 15 Conference attendees from across the nation.  The paper acknowledged that sentencing advocacy was a growing profession and called for the establishment of a national organization to support its development. 

The National Association of Sentencing Advocates (NASA) was founded in 1992 under the auspices of The Sentencing Project.  In 2005, it was re-named The National Alliance of Sentencing Advocates and Mitigation Specialists (NASAMS) to acknowledge the growth and importance of capital mitigation.

NASAMS is a national organization dedicated to the professional development of sentencing advocates and mitigation specialists. Its mission is to establish and uphold the highest ethical standards of practice of the profession by fostering the professional development of its members through multidisciplinary training, mentorship, and support.

This set of Ethical and Professional Standards should be reviewed in conjunction with the Recommended Minimum Requirements for Practicing Sentencing Advocates and Mitigation Specialists. While capital case mitigation standards have been more thoroughly examined, non-capital sentencing and mitigation standards are similarly important¹.

Sentencing advocates explore the histories of criminal defendants to create individualized sentencing plans. Their proposals often focus on substance abuse and mental health treatment, victim restitution, community supervision, avoidance of future misconduct, and appropriate and constructive consequences. This approach allows courts to sentence people to community-based programs that address their needs, while reserving expensive prison and jail space only for those who threaten the safety of the community.

Mitigation specialists advocate for the dignity and value of individuals who have committed even the most heinous criminal acts. When a criminal defendant faces a death sentence, a mitigation specialist will tell his story to the jury to advocate for his life. Mitigation specialists also provide expert insight into criminal culpability, helping courts to understand a defendant’s mental health or developmental disorders.²

CODE OF ETHICS

1. Mitigation Specialists and Sentencing Advocates shall uphold the highest standards of personal and professional conduct and the integrity of the profession as guided by this code of ethics, professional norms, and practice standards.
2. Mitigation Specialists and Sentencing Advocates shall remain proficient regarding emerging and best practices of the profession through collaborating with colleagues, attending training and continuing education seminars, and maintaining diligent practices.  It is the Mitigation Specialist’s and Sentencing Advocate’s responsibility to remain up-to-date about changes in the law and profession.³
3. Mitigation Specialists and Sentencing Advocates should be familiar with local and jurisdictional laws and practices regarding the retention of records.  S/he must take all necessary steps to protect the confidentiality of the information and preserve an accurate and complete case record for the client’s use on appeal, if required.
4.  
   1. Mitigation Specialists and Sentencing Advocates should be educated and aware of any (but not limited to) overt, explicit, or implicit, and systemic biases, such as structural racism, cultural norms/expectations, gender identity and discrimination, socio-economic and/or cross-cultural sensitivities. A Mitigation Specialist or Sentencing Advocate must not only recognize and confront such matters and topics but also engage in training and education as to how these biases can affect sentencing decisions and be prepared to develop strategies to address potential impacts.⁴
   2. Mitigation Specialists and Sentencing Advocates will engage their clients in a respectful, non-judgmental manner, taking into account their culture, gender, sexual orientation, race, beliefs, values, and other factors that shape an individual’s views, and shall not discriminate against clients.
   3. Mitigation Specialists and Sentencing Advocates will practice cultural humility and exercise a respect for diversity, equity, inclusion, and belonging among peers and clients in all its manifestations. This includes, but is not limited to: heritage, gender, language, social class, communication style, values, belief systems, sexual orientation, age, disability, national origin, marital status, veteran’s status, or citizenship status. Best practices designed to ensure the client is provided with the most appropriate team of advocates may require making a referral or recommendation to another more suitable Mitigation Specialist/Sentencing Advocate with a more specific area of expertise or background, including language skills or specialized training, if believed to be necessary or advantageous to the client.
5. Mitigation Specialists and Sentencing Advocates have a duty to conduct thorough and diligent mitigation investigations thoroughly and diligently as to fulfill the 6th Amendment rights of their client.⁵
6. Mitigation Specialists and Sentencing Advocates shall respect the privacy of each client and hold in confidence all information obtained in the course of professional service, except as authorized by the client or required by law, and after consultation with counsel of record. In addition, Mitigation Specialists and Sentencing Advocates shall conduct all contacts, interviews, information gathering, and report writing in accordance with the law on attorney work product and attorney-client privilege in the jurisdiction in which the service is provided. It is the duty of the mitigation specialist to ask counsel of record in advance of conducting work about the rules related to discovery in the jurisdiction of practice.
7. Mitigation Specialists and Sentencing Advocates should make every reasonable effort to be familiar with and protect the legal rights of each client. When in doubt about the rights of clients, the Mitigation Specialist/Sentencing Advocate should consult the counsel of record.
8. Mitigation Specialists and Sentencing Advocates should provide clients with sufficient information so that they are reasonably able to make informed decisions about their cases.  Mitigation Specialists and Sentencing Advocates should respect the client’s decisions by including and considering the client as a member of the defense team and valuing their input in their case(s). The best interests and expressed interests of the client may not always align. Efforts to address this discrepancy should be made through consultation with counsel of record and in accordance with applicable case law and standards.
9. In consultation with counsel of record, a Mitigation Specialist or Sentencing Advocate shall keep the client informed of the progress of their case(s) and respond in a reasonably timely manner to requests by the client, in consultation with counsel of record. All disclosures are strategic and must be considered by counsel to ensure the client’s legal case is not jeopardized.
10. When a fee-for-service is appropriate or required, a Mitigation Specialist or Sentencing Advocate shall ensure it is fair and reasonable, and consistent with a client’s ability to pay. When the Mitigation Specialist or Sentencing Advocate is providing their services for a death penalty case, regardless of whether privately paid or appointed by a court, caps on compensation, lump-sum contracts, and flat fees are not to be utilized.⁶
11. Upon referral, the Mitigation Specialist or Sentencing Advocate shall act with reasonable diligence and promptness in determining whether a client is appropriate for services. When working on behalf of a client, a Mitigation Specialist or Sentencing Advocate shall proceed in a reasonably prompt and diligent fashion.
12. Mitigation Specialists and Sentencing Advocates may provide non-legal advice to the client based on his or her full range of experience and knowledge, but in no case shall the Mitigation Specialist or Sentencing Advocate offer or provide legal advice.
13. Whenever a Mitigation Specialist or Sentencing Advocate doubts a professional obligation that the client’s attorney may have to the client, the Mitigation Specialist or Sentencing Advocate should consult with that attorney.  Mitigation Specialists and Sentencing Advocates shall understand that, although it is the defense attorney’s duty to inform the Mitigation Specialist or Sentencing Advocate of any necessary legal information regarding the case, any need for further clarification is the responsibility of the Specialist to seek. A Mitigation Specialist's conduct shall be compatible with the professional obligations of the attorney. If in doubt, the Mitigation Specialist shall seek clarification from an informed source. In consultation with counsel, a Mitigation Specialist may identify and prepare witnesses to assist the defense effort. Such witnesses may include expert witnesses and/or lay witnesses.⁷

STANDARDS OF PRACTICE

1. As soon as practical, a Mitigation Specialist should conduct in-person, one-on-one, face-to-face interviews with the client.
2. A Mitigation Specialist should conduct interviews with the client and any other relevant individuals, such as the client’s family members, employers, teachers, or others who have known the client or their family and/or community. Interviews must occur in an environment that respects and protects the confidential nature of the conversation and information that may be gathered.
3. A Mitigation Specialist should be willing and able to conduct multiple interviews with a single individual when necessary to establish trust and rapport and to gather information as part of a diligent, complete investigation of the client’s life history. A Mitigation Specialist should be able to articulate, and if necessary, advocate to the counsel of record for the resources required to conduct a comprehensive mitigation workup.
4. A Mitigation Specialist shall be willing to take any additional actions necessary to overcome potential barriers in the investigation process, including, but not limited to, the COVID-19 pandemic and other evolving health concerns, geographic barriers, cultural barriers, etc.. ⁸ It is outside the professional standard to conduct interviews of witnesses by phone or through means other than in-person, face-to-face, and one-on-one.⁹ The allure to conduct interviews by phone, video, or other means of correspondence must therefore be resisted. The gold standard of mitigation practice is to conduct in-person client and collateral interviews.
5. A Mitigation Specialist shall only communicate with the victim or prosecution witness after first obtaining consent from counsel of record. In advance, a Mitigation Specialist shall seek to discuss strategy and/or purpose with the client, explore any potential prohibitions, and determine if counsel currently represents the witness. When interacting with such witnesses, a Mitigation Specialist must identify themselves and their role, and act with sensitivity and compassion.
6. Where possible, personal authorizations releasing confidential information to the defense team by the client should specify the person or agency releasing the information and the specific information that will be requested.
7. Regardless of other professional training or qualifications, Lawyers and Mitigation Specialists (not otherwise clinically qualified to make diagnoses) should not make diagnoses of the client. Mitigation Specialists, however, are expected to have the training and ability to recognize possible intellectual or mental impairments, disabilities, or physical or mental health concerns.  If the Mitigation Specialist believes that the client may have such a condition, s/he shall communicate the information to counsel of record and discuss the need to seek expert assistance and resources.¹⁰
8. A Mitigation Specialist should make every reasonable effort to consult with subject matter experts who specialize in topics, issues, and diagnoses specific to the client to obtain assessments or other information relative to the case. This includes, but is not limited to, cultural, environmental, corrections, physical, and mental health, trauma, and social science experts.
9. A Mitigation Specialist shall diligently seek, collect, and prepare any relevant evidence that could benefit the client’s case.¹¹
10. Mitigation Specialists shall be client-centered, trauma-informed, and exercise cultural humility in their practices ¹².
11. A Mitigation Specialist should become familiar with all statutorily permissible, available, and appropriate alternatives to incarceration and should explore community resources to ensure appropriate programming and to elicit support.
12. Sentencing proposals should seek to achieve the least restrictive sentencing alternative, which can reasonably be obtained based on the facts and circumstances of the offense, the client’s background, the applicable sentencing provisions, the possibility and availability of treatment and/or service, the outcome design by the legal team, and other information pertinent to the sentencing decision.
13. A Mitigation Specialist is expected to be a core member of a defense team and is therefore privy to the same depth and degree of information as the client’s attorney, and should not testify on the client’s behalf. Doing so would place the client in an untenable situation. If the Mitigation Specialist has been hired to testify and this has been discussed prior to engagement, the Mitigation Specialist must be adequately prepared. This includes, but is not limited to, attorney and witness direct and cross-examination preparation, knowledge of the court and jurisdiction's policies, procedures, and customs, and review of case and testimony materials.
14. A Mitigation Specialist should not carry a caseload of such size that it interferes with the quality of work provided to each client. Should the Mitigation Specialist’s caseload, when a part of a public defender, habeas, or other appellate office, or law firm, become unmanageable, the Mitigation Specialist should consult with the supervising staff member or attorney(s) on how to create a more manageable case or workload. Should the Mitigation Specialist be a private practitioner, it is advisable to discuss caseload capacity, timeline expectations, and other logistical matters prior to the appointment or hiring. The private practice Mitigation Specialist must advise counsel of the need for additional time, when, or if, the caseload becomes unmanageable due to the unpredictable nature of the work or other developments that arise.¹³
15. When an ethical conflict arises in which the Mitigation Specialist is uncertain about how to proceed, the Mitigation Specialist shall seek the advice and counsel of colleagues and supervisors and consult with the attorney of record, unless the ethical conflict directly involves the attorney of record. Organizations that may be helpful for consultation regarding an ethical conflict:
    1. National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS) - https://www.nlada.org/NASAMS
    2. Advancing Real Change (ARC) - advancechange.org
    3. National Association of Criminal Defense Lawyers (NACDL) - nacdl.org
    4. National Association for Public Defense (NAPD) - publicdefenders.us
16. Communication between a client of the attorney of record and a Mitigation Specialist employed by the attorney or legal firm falls within the scope of the attorney-client privilege.  Attorney-client privilege remains in effect as long as the attorney of record requires the Mitigation Specialist’s services to prepare for any aspect of the client’s case properly. Privileged communications and disclosure apply to social workers as members of the defense team.

EXAMPLES OF UNPROFESSIONAL CONDUCT

The following is a non-exhaustive list of acts that are examples of unprofessional conduct defined by NASAMS:

1. Performing or offering to perform services for which the Mitigation Specialist is not qualified by education, training, or experience.
2. Providing distorted, false, or misleading information or making false statements in connection with the provision of professional services.
3. Providing false or deceptively incomplete information when applying for membership or accreditation.
4. Using false, fraudulent, misleading, or deceptive advertising or billing practices.
5. Discrimination on the basis of age, race, color, gender, religion, creed, national origin, ancestry, marital status, political belief, disability, or sexual orientation when providing services or conducting business within the profession.
6. Each Mitigation Specialist has a professional and ethical obligation to continually assess their own physical and mental ability to provide high-quality services in the best interests of the client, and is required to withdraw or decline to provide services if they believe they are unable to do so.
7. Disclosing information, records, or communication received from a client without the informed consent of the client, except as required by law for purposes outside of the legal representation of the client. This does not prohibit a Mitigation Specialist from using case material for educational purposes, provided that all necessary precautions are taken to conceal and protect the identity of the client and others connected to the client who are involved as witnesses in the case. If anonymizing the client/case information is not possible, a written release of information must be obtained from the client before the information may be used.
8. Engaging in any behavior with a client that is sexual or engaging in actions that run counter to professional conduct/behavior.
9. Failing to notify counsel and other applicable organizations that a license, certificate, or registration for the practice of any profession previously issued to the professional member has been revoked, suspended, limited, denied, or has been subject to any other disciplinary action.
10. Failing to make reasonable efforts to notify a client when professional services will be interrupted or terminated by the Mitigation Specialist.
11. Engaging in gross negligence in practice in a single instance or negligence in practice in more than one instance.
12. Acting in a manner that violates the civil, legal, or human rights of clients.
13. Providing professional services for a client of another agency or colleague without advising all agencies or colleagues to determine whether a conflict of interest exists.