Sentencing and mitigation Evidence from the US illustrates the importance of the defence team being adequately prepared for sentencing and mitigation.22 With defence and official resources largely focussed on determination of guilt, lawyers often give little thought to the preparation they need to do to prepare mitigation arguments that support alternative sentences. Project 39A interviews with Indian lawyers revealed that collecting mitigating information for the sentencing stage of the case was entirely absent from the lawyers’ legal strategy. Effective defence during sentencing often depends on the ability to persuade the court that the defendant, despite being found guilty, does not merit the use of the death penalty. The defence strategy should address both whether the crime meets the highest threshold of severity as well as whether there is mitigation evidence that could persuade the court not to impose a death sentence. As Taiwanese lawyers observed, the ability to make effective arguments in mitigation often depends on psychology and social work skills to help present the defendant in a sympathetic light. Going “above and beyond” non-capital cases In the 1989 Additions to the UN Safeguards there is a requirement on counsel to go “above and beyond the protection afforded in non-capital cases”. As part of The Rights Practice’s longer term interest in encouraging performance standards for capital cases in Asia, our study sought to understand whether defence lawyers in viewed their role in defending death penalty cases as distinctive. While some of the lawyers interviewed or surveyed said they did treat death penalty cases differently, others did not distinguish between death penalty eligible and other serious criminal cases. In countries with few executions lawyers may assume that there is little chance of a death sentence. Taiwan lawyers reported that they treated death penalty cases differently in terms of their mentality and preparation. ICJR also found that among the lawyers they surveyed in Indonesia, the majority of respondents (88.7%) agreed or strongly agreed that defendants facing the death penalty should be given a higher standard of protection of fair trial rights than defendants in other criminal cases. A small minority disagreed; one interviewee argued that “whether he is facing the death penalty, whether he is sentenced to life, or punished for ordinary crimes… If we read the international bar association's code of conduct, there has never been a distinction in the administration of justice … There is not a valid argument for different treatment. When it comes to strategy, the strategy is the same. If it is the quality of the assistance, it is also the same.” Project 39A interviewed 20 Indian trial court lawyers who defend the accused at the first level. None of the lawyers treated death penalty cases differently from other serious cases. They placed greater focus on the conviction stage of the trial rather than the sentencing stage. The overwhelming justification for this, as stated by 11 lawyers, was that it is the duty of the lawyer to ensure that they mount the best possible defence for their client so that no innocent person is wrongfully punished and justice is delivered to the accused as well as the victim. 22 O’Brien, Sean D, “Capital Defence Lawyers: The Good, the Bad and the Ugly.” 105 Michigan Law Review 1067 (2007). https://repository.law.umich.edu/mlr/vol105/iss6/3 17