"Neuroscience, PTSD, and Sentencing Mitigation"

The title of this post is the title of this notable new article by Professor Betsy Grey just published in the October 2012 issue of the Cardozo Law Review. Here is how the piece's introduction starts and ends:

Recent years have seen an increasing acceptance of a link between Post Traumatic Stress Disorder (PTSD) and criminal behavior, both in the general populace and in the criminal justice system. The link appears to be most widely accepted in the case of military combat veterans.  Lawyers and scholars have called for use of PTSD related to military service both as a defense to criminal charges and as an argument for reducing the sentences of convicted military veterans.  Courts are generally more hospitable to military veteran PTSD claims at sentencing than as a defense at trial....

This Article proceeds in four parts.  Part I discusses the anxiety disorder of PTSD, highlighting legislative and judicial developments, as well as the federal sentencing guidelines, concerning the use of PTSD in criminal sentencing proceedings involving veterans and battered women.  It looks at these two areas against a backdrop in which courts generally hesitate to give weight to PTSD mitigating evidence.  In Part II, this Article reviews different theoretical justifications of mitigation use in sentencing and how those justifications apply in the context of PTSD.  Part III examines advances in neuroscience research that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress and explores whether those advances justify changes in our thinking about PTSD mitigation.  In conclusion, the Article suggests that advances in neuroscience research may cause lawmakers and judges to clarify policies on the use of PTSD in sentencing and proposes other limiting principles that should be considered.  In our efforts to recognize PTSD as a mitigating factor, we should identify whether we are concerned with the source of the traumatic event (e.g., from one’s military or combat service), or simply that the defendant has manifested PTSD symptoms.  Addressing this question may lead to a more principled and consistent approach to the use of this evidence in sentencing.