Keys To Effective Mental Health Mitigation In SentencingBy Joseph De Gregorio and Richard Levitt (Published in Law360, January 29, 2026)

By Joseph De Gregorio and Richard Levitt (Published in Law360, January 29, 2026)

On Dec. 19, Judge Keith Barnes of Utah's Fifth District Court sentenced Mia Bailey to consecutive terms of 25 years to life for murdering her parents — a near-maximum sentence despite documented diagnoses of autism spectrum disorder, schizophrenia and bipolar disorder.

The defendant, now 30, had been diagnosed with autism at age 4 and received ongoing psychiatric treatment throughout her life, including for schizophrenia and bipolar disorder. She had been released after just three days in the hospital for treatment related to her schizophrenia the week before the killings. Her brothers testified about their parents' devotion to her care and criticized what they called "medical negligence" in the weeks before the killings.

Yet none of this extensive mental health evidence translated into meaningful mitigation. The judge acknowledged Bailey's neurodevelopmental and psychiatric conditions during his sentencing remarks but nonetheless imposed consecutive sentences that effectively guarantee she will spend the rest of her life in prison. The Bailey brothers urged the court to hold their sister accountable while recognizing her documented mental illness — but the result suggests the defense presentation fell into what has become a persistent pattern in federal and state courts alike.

We don't know what sentencing mitigation strategy was used by defense counsel in this case. As a general observation, though, defense attorneys face a fundamental challenge: Mental health mitigation presented as generalized appeals for mercy tends to be much less effective than presentations tethered to specific sentencing statutes and the federal sentencing guidelines. Courts need more than sympathy — they need a framework.

This is particularly important because federal sentencing increasingly emphasizes data-driven decision-making, and the U.S. Sentencing Commission prioritizes evidence-based practices.[1] And mitigating the risk of recidivism stands as a statutory mandate under both the First Step Act and Title 18 of the U.S. Code, Section 3553(a).

The Hidden Population: Mental Health in Federal Prisons

A 2006 study by the Bureau of Justice Statistics found that approximately 45% of federal inmates self-reported mental health or neuropsychological concerns, including conditions such as autism spectrum disorder, bipolar disorder, schizophrenia, anxiety disorder and post-traumatic stress disorder.[2] Nearly 35% of incarcerated men in state prisons received formal diagnoses from mental health professionals, and federal populations likely showed similar, if slightly lower, rates.[3]

These conditions deserve meaningful consideration during sentencing, yet they frequently go unmentioned or are presented ineffectively. Federal judges have developed a healthy skepticism toward mitigation that sounds like begging. What can resonate with judges instead is reframing mental health evidence as objective clinical data that directly informsthe risk assessment and rehabilitative considerations mandated by Title 18 of the U.S. Code, Section 3553(a).

The Sympathy Trap: Why Emotional Appeals Fall Flat

Framing mental health diagnoses as generalized grounds for leniency is often less effective than presenting them as sentencing data affecting specific Section 3553(a) factors. Consider these familiar but problematic approaches in presentence submissions and oral advocacy at sentencing:

• "My client has autism and struggles socially."

• "His condition made it difficult to understand the consequences."

• "Prison will be especially hard for someone with his diagnosis."

• "He deserves compassion because of his disability."

These formulations, however heartfelt, tend to invite judicial resistance because they provide no mechanism for calibrating an appropriate sentence within the statutory framework. Judges may thus acknowledge the diagnosis during sentencing remarks, then often impose guideline-range sentences as though the condition had never been raised.

The antidote lies in presenting mental health evidence through a framework that corresponds directly with the factors Congress has mandated courts consider under Section 3553(a).

The Statutory Alternative: Speaking the Language Courts Must Hear

Statutorily grounded mitigation transforms mental health diagnoses into objective clinical evidence relevant to specific Section 3553(a) factors, as follows:

• The nature and circumstances of the offense: How did neurodevelopmental factors contribute to the criminal conduct?

• The history and characteristics of the defendant: What does clinical data — not character references — reveal about this individual?

• The need to protect the public: What does the defendant's neuropsychological profile indicate about recidivism risk?

• The need to provide correctional treatment: What specific therapeutic interventions address the clinical deficits identified?

  
  

This approach addresses what judges are required to consider under the statute, not what they might be asked to feel. Defense counsel can do so effectively by following four steps.

1. Executive Function as Sentencing Data: Making the Abstract Concrete

The first step is reframing how cognitive deficits are introduced. Rather than simply citing a diagnosis, effective mitigation presents neuropsychological testing that reveals specific, measurable impairments.

A forensic evaluation might show, for instance, that a defendant scored in the 2nd percentile on the Wisconsin Card Sorting Test, indicating severe cognitive inflexibility; demonstrate deficits in task-switching ability through Trail Making Test results; or reveal impaired impulse control under competing stimuli via Stroop testing.[4]

These findings become legally significant when explicitly connected to the offense conduct itself. Defense counsel might argue: "During the period of criminal activity, the defendant was managing multiple competing demands with inadequate cognitive infrastructure for complex decision-making. Clinical evidence demonstrates he lacks the neurological capacity for the sophisticated risk assessment the government attributes to him."

This isn't arguing "my client couldn't help it." It's providing clinical context for how the offense unfolded — data relevant to culpability assessment under Section 3553(a)(1). The distinction matters enormously to judges evaluating whether mental health evidence explains a defendant's behavior in ways that inform appropriate sentencing.

2. Recidivism Risk: From Hopeful Prediction to Actuarial Fact

The second component involves presenting reduced recidivism risk as actuarial reality rather than wishful thinking. Research indicates that individuals with documented neurodevelopmental conditions demonstrate substantially lower recidivism rates than neurotypical defendant populations.[5] Because Section 3553(a)(2)(C) requires courts to consider the need "to protect the public from further crimes of the defendant," this clinical evidence directly addresses a statutory mandate rather than merely requesting sympathy.

The presentation should emphasize objectivity. Defense counsel might say: "Your Honor, this isn't a request for leniency based on disability. This represents research data showing that defendants with this clinical profile reoffend at rates substantially lower than the guidelines would otherwise assume. The need for incapacitation — a statutory sentencing factor — is objectively reduced."

3. Clinical Treatment Plans: Replacing Promises With Protocols

The third element substitutes vague rehabilitation promises with structured treatment plans featuring measurable outcomes. Rather than generic statements about clients wanting to "get better" or "become a productive member of society," competency-based mitigation presents specific therapeutic interventions targeting identified clinical deficits.

A comprehensive plan might include 12 months of weekly cognitive behavioral therapy using autism-specific protocols with a therapist who specializes in adult autism spectrum disorder, focused on social cognition training and perspective-taking exercises. Progress could be measured through improvement on standardized assessments,[6] with additional phases focusing on cognitive rehabilitation and vocational programming, and sustained employment with therapeutic monitoring as the measurable outcome.[7]

The argument should emphasize clinical specificity. Attorneys might say: "This isn't generic rehabilitation. This represents targeted intervention addressing the specific neurological deficits that contributed to the offense. The court's statutory obligation to provide needed correctional treatment under Section 3553(a)(2)(D) is satisfied through this evidence-based plan."

When rehabilitation plans contain clinical precision and measurable benchmarks, they evolve from hopeful narratives into actionable correctional treatment proposals that judges can evaluate and monitor.

4. Connecting Clinical Evidence to the Guideline Framework

The final component explicitly links clinical evidence to established grounds for variance.

Neuropsychological evidence of executive function deficits that significantly impaired judgment, without rising to legal insanity, may support a sentence variance based on diminished capacity. Clinical data showing that the offense conduct was neurologically inconsistent with the defendant's lifelong adaptive functioning patterns may support an aberrant behavior variance.

Documented completion of autism-specific therapeutic programming before sentencing, with measurable clinical improvement, may support a variance for post-offense rehabilitation. Throughout, the overarching statutory reference remains the Section 3553(a) criteria, which direct consideration of the defendant's individual circumstances that the guidelines fail to adequately capture.

Translating Theory Into Practice: A Road Map for Defense Counsel

The conceptual framework demands translation into concrete action. Effective competency-based mitigation begins with strategic planning early in the case, particularly obtaining neuropsychological evaluation within 30 days of a guilty plea. Defense counsel should not wait for the presentence report process to identify mental health issues. Instead, immediately retain a forensic neuropsychologist with federal sentencing experience to conduct a comprehensive assessment.[8]

Critically, the evaluation must specifically address how identified deficits contributed to the offense conduct. Generic diagnostic reports stating "the defendant has autism spectrum disorder" or "the defendant suffers from ADHD" provide minimal sentencing value. The evaluation must answer: What specific cognitive impairments affected the defendant's decision-making during the offense period? How do those impairments relate to culpability assessment and risk evaluation under Section 3553(a)?

Therapeutic interventions should commence as early as possible, with rigorous documentation establishing clinical progress. Weekly therapy session notes, pre- and post-clinical assessment data, treatment provider progress reports, and measurable improvement metrics create the evidentiary foundation for mitigation arguments.

Consider a defendant with ADHD convicted of securities fraud who begins twice-weekly cognitive behavioral therapy focused on impulse control. After six months, standardized testing reveals a 40% improvement in delay discounting tasks — the tendency to choose immediate smaller rewards over delayed larger rewards, a key marker of impulsivity. The therapist submits a clinical letter explaining how this measurable improvement directly addresses the neurological impulsivity that contributed to securities fraud.

The presentation becomes: "This isn't 'my client is trying to be better.' This is clinical evidence of measurable reduction in the neurological factors that caused the offense."

The difference between promising future rehabilitation and documenting current clinical progress fundamentally alters how judges evaluate mental health mitigation.

Defense counsel should also research their assigned judge's prior sentencing decisions involving defendants with similar diagnoses. While locating such cases presents challenges, federal defenders — who handle the majority of federal cases — often maintain this information, as do other criminal justice organizations.

Which mental health arguments did the judge credit in previous cases? What language appeared in their sentencing opinions when granting or denying mental health-based variances? Have they granted variances based on neuropsychological evidence, and under what circumstances? What experts have they found credible, and what testimony has failed to persuade them?

Tailoring the sentencing memorandum to speak the language a specific judge has historically responded to can dramatically increase the effectiveness of this approach.

In appropriate cases, defense teams should consider calling the

neuropsychologist as a live witness at sentencing. While uncommon in federal practice, expert testimony becomes particularly effective when the diagnosis is complex and difficult to explain in writing, when the court needs to understand technical clinical findings that don't translate well to written reports, when the prosecution is likely to challenge the diagnosis or its relevance, or when the case would benefit from the expert having the opportunity to directly address anticipated judicial questions about causation or risk assessment.

Effective expert testimony explains clinical findings in accessible language without condescension, connects diagnosis to reduced recidivism risk through actuarial data, and maintains clinical objectivity under cross-examination.[9]

Broadening the Framework Beyond Autism

As suggested by the ADHD example above, this competency-based approach extends well beyond autism spectrum disorder to any mental health or neurodevelopmental condition affecting criminal conduct and sentencing considerations. For defendants with PTSD, for instance, the framework involves presenting clinical evidence of hypervigilance and threat perception abnormalities that contributed to the offense conduct, demonstrating completion of trauma-focused therapy,[10] and providing measurable symptom reduction data through standardized instruments.[11]

For ADHD cases, counsel should introduce neuropsychological data showing executive function deficits and impulsivity through continuous performance testing and executive function batteries, document medication compliance through pharmacy records and prescriber reports, and demonstrate improvement in standardized attention testing after treatment initiation.

Traumatic brain injury cases may benefit from neuroimaging evidence of frontal lobe damage affecting impulse control and judgment, occupational therapy documentation showing functional improvements, and cognitive rehabilitation progress metrics demonstrating recovery of executive function capacity.

Even substance use disorders fit the framework through clinical evidence of brain reward system dysregulation documented through neuroimaging or neuropsychological testing, residential treatment completion records showing intensive intervention, and sustained recovery biomarkers such as negative drug screens, attendance at recovery support meetings, and completion of cognitive behavioral therapy for substance abuse.

The unifying principle across all diagnoses remains consistent: Transform subjective sympathy into objective clinical data addressing the Section 3553(a) factors judges must consider. The diagnosis itself carries no inherent mitigating weight — only the quality and specificity of clinical evidence connected to statutory sentencing factors determines mitigation value.

Ethical Boundaries: Discipline in Advocacy

This approach demands ethical discipline from defense counsel. Competency-based mitigation succeeds when it's built on legitimate diagnoses from qualified clinicians, when clinical findings genuinely relate to offense conduct rather than constituting post-hoc rationalization, when evidence supports reduced recidivism conclusions through actuarial data rather than speculation, and when treatment efforts are authentic rather than performative sentencing theater.

It fails when counsel retrofit diagnoses to excuse behavior, overstate clinical significance beyond what the data supports, rely on experts with predetermined conclusions who lack scientific objectivity, or use diagnoses to avoid accountability entirely rather than inform appropriate sentencing. The goal isn't eliminating culpability — it's providing complete clinical information relevant to individualized sentencing under the statutory framework Congress established.

From Emotion to Evidence: The Path Forward

To reiterate, federal sentencing increasingly emphasizes data-driven decision-making. The Sentencing Commission prioritizes evidence-based practices. Mitigating the risk of recidivism stands as a statutory mandate both under Section 3553(a) and the First Step Act.

Defense attorneys who rely on emotional mitigation — asking judges to "show compassion" or "consider the whole person" — face an uphill battle in an evolving legal landscape.

Effective modern mitigation is clinical, measurable and directly tied to Section 3553(a) factors. When mental health diagnoses are presented as risk assessment data, they don't simply reduce sentences — they fundamentally alter how courts analyze culpability, rehabilitation potential and public safety considerations.

Joseph De Gregorio is the founder at JN Advisor.

Richard Levitt is the founding partner at Levitt & Kaizer.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Footnotes

[1] Indeed, 28 U.S.C. § 991, the 1984 legislation that established the United States Sentencing Commission, provides that the guidelines should "reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process," and directs the Commission to "develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in [Title 18] section 3553(a)(2)."

[2] Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report (Sept.

2006), https://bjs.ojp.gov/content/pub/pdf/mhppji.pdf (finding 45% of federal prisoners had mental health problems based on self-reported symptoms).

[3] Id. (finding 35% of male state prisoners reported being told by mental health professionals they had a mental disorder).

[4] The evaluation should incorporate executive function batteries such as the Wisconsin Card Sorting Test, Trail Making Test, and Stroop Test to measure cognitive flexibility, task-switching ability, and impulse control. Social cognition measures like the Reading the Mind in the Eyes Test and Social Attribution Task assess the defendant's capacity to understand social cues and attribute mental states to others. Emotional regulation testing through the Continuous Performance Test and BRIEF-A evaluates impulse control and self-regulation capacity. Adaptive functioning scales like the Vineland-3 document how the defendant functions in real-world settings compared to neurotypical populations.

[5] See, e.g., Yue Yu et al., Young Adults with Autism Spectrum Disorder and the Criminal Justice System, 51 J. Autism & Dev. Disorders 3624 (2021) (finding lower recidivism rates among individuals with ASD compared to control groups); Charlotte E. Blackmore et al., Adults with Autism Spectrum Disorder and the Criminal Justice System, 26 Autism 2098 (2022) (noting research suggesting reduced reoffending among neurodivergent populations).

[6] See, e.g., the Reading the Mind in the Eyes Test.

[7] For instance, a second phase could involve neuropsychologist-supervised cognitive rehabilitation addressing impulse control, complex decision-making, and risk assessment, with outcomes tracked through standardized executive function batteries. The final phase might feature structured vocational programming that accounts for neurodivergent workplace needs, with supervision structures addressing social cognition deficits.

[8] The evaluation should incorporate executive function batteries such as the Wisconsin Card Sorting Test, Trail Making Test, and Stroop Test to measure cognitive flexibility, task-switching ability, and impulse control. Social cognition measures like the Reading the Mind in the Eyes Test and Social Attribution Task assess the defendant's capacity to understand social cues and attribute mental states to others. Emotional regulation testing through the Continuous Performance Test and BRIEF-A evaluates impulse control and self-regulation capacity. Adaptive functioning scales like the Vineland-3 document how the defendant functions in real-world settings compared to neurotypical populations.

[9] Testimony fails when experts appear overly sympathetic to defendants and lose scientific objectivity, when testimony devolves into excuse-making rather than explanation, or when experts lack federal sentencing experience and cannot articulate how their findings address § 3553(a) factors.

[10] For example, Prolonged Exposure or Cognitive Processing Therapy.

[11] See, e.g., the PTSD Checklist or Clinician-Administered PTSD Scale.